Opinion
March 9, 2000
Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about April 5, 1999, which, upon the parties' respective motions for summary judgment, inter alia, declared that plaintiff is entitled to possession of the subject apartment as a rent stabilized tenant, and denied defendant-appellant's motion to disqualify plaintiff's attorney, unanimously affirmed, with costs.
Robert Grimble for plaintiff-respondent.
Edward Paul Alper for defendant-appellant.
Carl Eckstein for intervenor.
Sullivan, P.J., Ellerin, Lerner, Buckley, JJ.
The motion court correctly held that appellant failed to meet his burden of demonstrating the absence of a full and fair opportunity to litigate the issue of plaintiff's status as a rent stabilized tenant in the rent proceeding before the Division of Housing and Community Renewal, and properly invoked collateral estoppel in resolving that issue in plaintiff's favor (see, Kaufman v. Lilly Co., 65 N.Y.2d 449, 455-456; Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499). The court also properly refused to disqualify plaintiff's attorney absent a showing that the anticipated testimony of the attorney, who is "of counsel" to plaintiff's attorney, will be prejudicial to plaintiff (see, Martinez v. Suozzi, 186 A.D.2d 378, 379). We have considered and rejected appellant's other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.