
    In the Matter of Hyman J. Stier et al., Co-owners of Premises 601 West 179 Street, New York, New York, Doing Business under the Name of S & S Realties, Petitioners, v. Frederic S. Berman, as Commissioner of the Department of Housing and Maintenance, Respondent.
    Supreme Court, Special Term, New York County,
    March 6, 1969.
    
      
      Sidney Grossman for petitioners. Gerald J. Turetsky and George Nims Raybin for respondent.
   Vincent A. Lupiano, J.

In this article 78 proceeding to review respondent Bent Commissioner’s determination denying petitioner landlord’s protest and affirming an order establishing a maximum monthly rental of $1 for the subject premises as a result of fire damage, an examination of the record readily finds ample support for the determination reached and same can in no manner be characterized as arbitrary or capricious.

There was heretofore presented for respondent’s determination, at a conference and hearing, the factual issue of whether or not the tenant had evinced a desire to return to her apartment prior to the restoration thereof to a habitable condition. This issue was resolved in favor of the tenant and against petitioner landlord. Sufficient credible evidence to sustain such a finding appears in the record and, in view thereof, no warrant exists for any disturbance thereof.

The hearing before respondent was not a statutory hearing and, in view thereof, petitioner errs in contending that the proceeding should be transferred to the Appellate Division pursuant to CPLR 7803 (subd. 4); 7804 (subd. [g]). The motion is denied and the proceeding is dismissed.  