In the Matter of the Estate of Nicholas Smith, Deceased. Frank Heller, Appellant; Emanuel Gambino, Respondent

In the Matter of the Estate of Nicholas Smith, Deceased. Frank Heller, Appellant; Emanuel Gambino, Respondent. [678 NYS2d 745] [MAJORITY] In an action to recover rent overcharges, commenced in the Supreme Court, Kings County, which was transferred to the Surrogate’s Court, Kings County, on the ground that it involved the affairs of an estate, the plaintiff appeals, as limited by his brief, from so much of an order of the Surrogate’s Court, Kings County (Feinberg, S.), dated October 8, 1997, as "dismissed” that branch of his motion which was for summary judgment for failure to exhaust his administrative remedies. Ordered that the order is reversed insofar as appealed from, on the law, with costs payable out of the estate, and the matter is remitted to the Surrogate’s Court, Kings County, for a determination of the aforementioned branch of the plaintiffs motion on the merits. The Surrogate improperly held that the plaintiff was required to exhaust his administrative remedies before he could commence the present action (see, McKinney’s Uncons Laws of NY § 8632 [a] [1] [f] [Emergency Tenant Protection Act of 1974 § 12 (a) (1) (f) (L 1974, ch 576 §4, as amended)]; Crimmins v Handler & Co., 249 AD2d 89; Cvetichanin v Trapezoid Land Co., 180 AD2d 503; Smitten v 56 MacDougal St. Co., 167 AD2d 205). Thus, the matter must be remitted for a determination on the merits of that branch of the plaintiffs motion which was for summary judgment. O’Brien, J. P., Sullivan, Pizzuto and Florio, JJ., concur.