
    Dunbar Paint Supply Corp., Respondent, v "John Doe” et al., Appellants.
   — Order, Appellate Term, First Department, entered on or about February 24, 1975, modifying, by a divided court, a judgment of the Civil Court, to the extent of dismissing the petition as against the prime tenant, unanimously modified, on the law, to the extent of dismissing the proceeding as against the subtenant and, as so modified, the order appealed from is unanimously affirmed, without costs and without disbursements. This squatter proceeding was improperly brought against both the tenant of a rent controlled apartment and the subtenant whom she put in possession and the majority at the Appellate Term correctly so held as to the statutory tenant. We agree with the dissenting Justice that the proceeding should be dismissed as against the subtenant as well. As to the latter, it is conceded that he is in possession with the permission of the statutory tenant. Hence, he is in possession with "the permission of the person entitled to possession” (Real Property Actions and Proceedings Law, § 713, subd 3) and, accordingly, the statutory basis for a squatter proceeding under section 713 is lacking. The landlord has other available remedies. Concur — Stevens, P. J., Lupiano, Tilzer, Capozzoli and Yesawich, JJ.  