Opinion
March 29, 1956
The landlord's application for a certificate of eviction was initially denied by the Rent Administrator. In this article 78 proceeding the Special Term annulled the determination on the ground it was arbitrary. The tenant was not then a party to this proceeding which had been litigated between the landlord and Administrator, although tenant was advised by the Administrator of his right to intervene. After the court's decision the Rent Administrator reconsidered the application of the landlord and granted a certificate of eviction. The tenant then sought to vacate the order of the Special Term and this application was denied, in part on the ground that the court had thoroughly considered the evidence in the litigation between landlord and Administrator. The tenant's side of the controversy had not, however, been directly presented to the court by him. The procedural situation in which the tenant undertook to attack the fairness of the court's decision as to him in a motion to vacate an order in a proceeding in which he had not been a party has disadvantages which suggest that the problem should be freshly examined by the Administrator and a determination made as between the landlord and the tenant as their respective rights and interests may appear. We do not pass upon the merits either of the original determination of the Administrator or of the Special Term's annulment of that determination. Order denying application to vacate unanimously reversed, the order vacated and the matter remitted to the Administrator for further proceedings. Settle order on notice.
Concur — Breitel, J.P., Botein, Rabin, Cox and Bergan, JJ.