Opinion
No. 82860/11.
2012-04-18
FORTUNE JD LLC, Petitioner/Landlord, v. SAMUEL JOHN, INC. a/k/a Samuel John Furniture Inc, Respondent/Tenant, John Romano, Karen Zieff, John Doe and/or Jane Doe, and XYZ Corp., Respondents–Undertenants–Occupants.
George S. Locker, Esq. New York, NY, for Respondent. Smith & Krantz, LLP, New York, NY, for Petitioner.
George S. Locker, Esq. New York, NY, for Respondent. Smith & Krantz, LLP, New York, NY, for Petitioner.
MAJORITY OPINION
KATHERINE A. LEVINE, J.
In this summary holdover proceeding, petitioner/landlord Fortune JD LLC (“landlord” or “Fortune”) seeks to recover a portion of the third (3rd) Floor, a/k/a 3rd Floor Corner Loft, a/k/a 3rd Floor West, located at 269 Douglass Street in Brooklyn, from the respondent/tenant Samuel John, Inc a/k/a Samuel John Furniture Inc (“tenant” or “Furniture Inc”) and the respondents/undertenants John Romano (“Romano”), Karen Zieff (“Zieff”) jointly (“the undertenants”), on the grounds that the term for which said premises were rented expired on March 31, 2011. The landlord also seeks a money judgment for post-expiration use and occupancy of the premises, attorney fees, costs and disbursements against the undertenants.
The landlord commenced this proceeding by service of a Notice of Petition Holdover, dated July 21, 2011. The undertenants interposed an answer dated August 1, 2011 in which they aver that 1) they continuously occupied the premises as residential tenants since 2007; 2) they are protected residential tenants pursuant to Art. 7–c of the Multiple Dwelling Law (“Loft Law”); and 3) on May 23, 2011, prior to the commencement of the instant proceeding, they commenced a proceeding before the NYC Loft Board (“ “Board”) to determine whether they were protected residential tenants.
By motion dated August 19, 2011 petitioner sought disclosure pursuant to CPLR x 408, based upon respondents Loft Law coverage defense, including leave to depose Romano, compel him to produce documentation and to respond to the petitioner's interrogatories. By cross-motion dated September 8, 2011, the undertenants moved to dismiss for lack of subject matter jurisdiction based upon their currently pending application to the Board for designation of the subject premises as an Interim Multiple Dwelling under the Loft Law.
The parties have agreed that another motion brought by the respondents to enjoin the petitioner from committing waste and damage to the subject premises, inter alia, is moot as it is currently pending before the Supreme Court, Kings County (Schmidt, JSC).
It is well settled that although this court has concurrent jurisdiction with the Loft Board to determine coverage under the Loft Law, Mtr. Of Jo–Fra Properties, Inc., 27 AD3d 298 (1st Dept .2006); EPDI Associates v. Conley, 7 AD3d 755, 756 (2nd Dept.2004); County Dollar Corp. v. Douglas, 160 A.D.2d 537, 538 (1st Dept.1990), resort to the courts should be deferred in “deference to the Loft Board's expertise.” Jo–Fra, supra, 27 AD3d at 299;Haddad Corp. v. CAL Redmond Studio, 102 A.D.2d 730, 731 (1st Dept.1984). Deferral is in accord with the doctrine of primary jurisdiction, which counsels that a court should defer to the administrative agency with the necessary expertise issues beyond the conventional experience of judges. Neumann v. Wyandanch Union Free School District., 84 AD3d 816, 818 (2nd Dept.2011). A contrary determination would unwisely and improperly immerse the court in issues patently within the expertise of the administrative body. Eli Haddad Corp supra, 102 A.D.2d at 731.
Since the issue as to whether the premises occupied by the undertenants is residential and protected under the Multiple Dwelling Law is within the special competence of the Loft Board which is already considering this matter, the Court stays this action pending a ruling by the Loft Board. Nevertheless, pending the determination of the Loft Board, the undertenants are directed to pay use and occupancy at the rate currently provided for as rent on each rental due date. See Eli Haddad Corp., supra, 102 A.D.2d at 731. This result will accommodate the competing interests of the parties, affording the undertenants possession pending the determination of the issue by the Loft Board and at the same time compensation the landlord. “Having entered into possession fully cognizant of the existing realities, tenants should not now be permitted the reap the benefits of occupancy and, at the same time, avoid payment of rent. Lipkis v. Pikus, 99 Misc.2d 518, 520 (App.Term, 1st Dept.1979).
The foregoing shall constitute the Decision, Order and Judgment of the Court.