Opinion
8455 Index 160035/15
02-21-2019
Mario SUAREZ, et al., Plaintiffs-Respondents-Appellants, v. FOUR THIRTY REALTY LLC, et al., Defendants-Appellants-Respondents.
Horing, Welikson & Rosen, P.C., Williston Park (Niles C. Welikson of counsel), for appellants-respondents. Sokolski & Zekaria, P.C., New York (Robert E. Sokolski of counsel), for respondents-appellants.
Horing, Welikson & Rosen, P.C., Williston Park (Niles C. Welikson of counsel), for appellants-respondents.
Sokolski & Zekaria, P.C., New York (Robert E. Sokolski of counsel), for respondents-appellants.
Renwick, J.P., Tom, Singh, Moulton, JJ.
Defendants argue that plaintiffs' claims, that the subject apartment was improperly removed from rent stabilization, and for a rent-overcharge and attorneys' fees, are barred by the doctrine of collateral estoppel (see Gersten v. 56 7th Ave. LLC, 88 A.D.3d 189, 201, 928 N.Y.S.2d 515 [1st Dept. 2011], appeal withdrawn 18 N.Y.3d 954, 944 N.Y.S.2d 482, 967 N.E.2d 707 [2012] ). Defendants are correct that plaintiffs had a full and fair opportunity to participate in the proceedings held 13 years earlier before New York State Division of Housing and Community Renewal (DHCR) that resulted in the deregulation of plaintiffs' apartment pursuant to high income deregulation law. However, plaintiffs' present claims raise an issue that was not raised or litigated in the prior DHCR deregulation proceedings, i.e., whether their apartment was subject to re-regulation when they entered into a new market rate lease at a time when the building was still receiving J–51 tax benefits (see Leight v. W7879 LLC, 128 A.D.3d 417, 7 N.Y.S.3d 891 [1st Dept. 2015], affd 27 N.Y.3d 929, 28 N.Y.S.3d 679, 48 N.E.3d 960 [2016] ; Extell Belnord LLC v. Uppman, 113 A.D.3d 1, 11, 976 N.Y.S.2d 22 [1st Dept. 2013] ).
Accordingly, Supreme Court should have granted plaintiffs' motion for summary judgment declaring that apartment 9H in the building located at 430 East 86th Street in Manhattan is a rent-stabilized unit and that plaintiff Suarez is entitled to a rent-stabilized lease (see Roberts v. Tishman Speyer Props, L.P., 13 N.Y.3d 270, 890 N.Y.S.2d 388, 918 N.E.2d 900 [2009] [apartments restored to rent stabilization because the owner deregulated the apartments pursuant to the luxury decontrol laws while it was receiving tax benefits under the City's J–51 program; Gersten v. 56 7th Ave. LLC., 88 A.D.3d at 198, 928 N.Y.S.2d 515 [applying Roberts retroactively] ).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.