
    In the Matter of Carmine T. Bottiglieri et al., Petitioners, v. Frederic S. Berman, as City Rent Administrator, et al., Respondents.
    Supreme Court, Special Term, Bronx County,
    June 26, 1967.
    
      Saverio A. Muschio for petitioners. Maurice A. Reichman and George Nims Raybin for Frederic S. Berman, respondent.
   Wilebed A. Waltemade, J.

The petitioners seek relief pursuant to article 78 CPLR to annul a determination by respondent fixing the legal maximum rent for the subject apartment. The petitioners contend in this special proceeding and in the proceedings before the respondent that the premises are not subject to rent control by reason of prior owner occupancy pursuant to section 2 (subd. f, par. [11]) of respondent’s regulations (N. Y. City Rent, Eviction and Rehabilitation Regulations).

The record before respondent contains an affidavit from the person named as owner of record of the premises, to the effect that he was not the actual owner of the premises and had merely been named as the grantee for specific reasons not material to this special proceeding and that the true owners were his parents who resided in the subject apartment. The affiant further stated that when the premises were sold to petitioners, the proceeds of the sale were divided among his brothers and sisters, which, if true, is an indication that said affiant was not the actual owner of the property although the record would reflect the contrary.

In arriving at Ms determination, the respondent states that “The record is clear that the landlord’s mother did not possess title to the subject building during the period of her occupancy of the subject apartment (Emphasis supplied.) It was arbitrary, capricious and contrary to law for respondent to predicate his determination solely and only upon record title. The test for determining decontrol is ownership of the property and it is clear that this issue was not resolved by the respondent upon all of the evidence submitted. Accordingly, the petition is granted to the extent that respondent’s order dated February 10, 1967 is annulled and this matter is remanded to respondent for further proceedings not inconsistent with this determination.  