
    In the Matter of Always Available Private Car Service, Inc., Petitioner, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Respondents.
   — Appeal from a judgment of the Supreme Court at Special Term, entered February 3, 1978 in Albany County, which dismissed on the merits petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination made by the State Tax Commission denying petitioner’s application for refund of motor fuel taxes. We find that the petitioner has not conclusively established that it was licensed to operate its vehicles at a fixed rate of fare and affirm upon the decision of Mr. Justice Hughes at Special Term. The motion of respondent for a dismissal of the petition upon the ground that sole jurisdiction was in the Court of Claims was denied by Special Term, and no appeal has been taken by the State which would raise that issue. In view of our affirmance of the judgment entered herein, we decline the invitation of the State to again consider the question of jurisdiction. Judgment affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.  