
    In the Matter of Paul Korniczky et al., Petitioners, v. Hortense W. Gabel, as City Rent and Rehabilitation Administrator, Respondent.
    Supreme Court, Special Term, New York County,
    October 31, 1962.
    
      Nathan Finkelstein for petitioners. Beatrice Shainswit for respondent.
   Vincent A. Lupiano, J.

This is a proceeding under article 78 of the Civil Practice Act instituted by landlord to reverse a determination of the Rent and Rehabilitation Administrator, which denied a decontrol of a controlled apartment.

The issue involved a question of fact whether the entire subject apartment was owner-occupied for a period of one year prior to the date of renting to new tenant. The Rent and Rehabilitation Administrator held it was not owner-occupied for one year. There is a rational basis for the Administrator’s determination that the entire apartment involved herein was not continuously occupied by landlord.

Since it is peculiarly the function of administrative agencies to determine disputed questions of fact, the judicial function is exhausted when there is a rational basis for the conclusion approved by the Administrator (Matter of Mounting & Finishing Co. v. McGoldrich, 294 N. Y. 104). Such determination may not be overturned “ unless they have been made without substantial evidence to support them or are arbitrary and capricious ” (Matter of First Terrace Gardens v. McGoldrich, 1 N Y 2d 1, 3). The court may not substitute its judgment for that of the administrative tribunal (Matter of Kaplan v. McGoldrich, 279 App. Div. 615; Matter of Mounting & Finishing Co. v. McGoldrich, supra).

The petitioners’ argument that the protest was decided after the expiration of the time specified in the statute and regulations is of no moment. The time limitation will be considered directory and not a Statute of Limitations. (See Matter of Fonseca v. Herman, 13 A D 2d 626; Matter of Funaro v. Herman, 13 A D 2d 626.)

Accordingly, the application is denied and the petition is dismissed.  