Opinion
23776
May 16, 2003.
For Petitioners: David R. Brody Esq., Borah, Goldstein, Altschuler, Schwartz Nahins, P.C., 377 Broadway, New York, N.Y. 10013.
For Respondent: Arthur Rhine Esq., Silberman Rhine, LLP, 35 Worth Street, New York, N.Y. 10013.
Decision and Order
I. THE PENDING MOTIONS
A. Respondent's Motion for Summary Judgment
Respondent tenant Ehlich has moved for summary judgment dismissing this commercial nonpayment proceeding to recover possession of unit 3W at 112-114 West 14th Street, New York County. CPLR § 3212(b). Respondent alleges that the premises are an interim multiple dwelling (IMD) lacking a certificate of occupancy (CO) for residential use and in violation of the code compliance timetable for IMDs. N.Y. Mult. Dwel. Law (MDL) §§ 281, 284(1), 285(1); 29 R.C.N.Y. § 2-01(c). Absent a valid CO, petitioner landlords may neither collect rent nor prevail in a proceeding for possession based on nonpayment of rent until the legal defect is cured. MDL § 302(1)(b); 468-470 Ninth Ave. Corp. v. Randall, 199 A.D.2d 13 (1st Dep't 1993); Jalinos v. Ramkalup, 255 A.D.2d 293, 294 (2d Dep't 1998). See Zane v. Kellner, 240 A.D.2d 208, 209 (1st Dep't 1997); Hornfeld v Gaare, 130 A.D.2d 398, 400 (1st Dep't 1987). While an IMD may qualify for an exemption from this bar, absent the IMD's legalization for residential use according to the statutory timetable, petitioners remain precluded from recovering rent or possession. MDL §§ 284(1), 285(1); 29 R.C.N.Y. § 2-01(c); County Dollar Corp. v. Douglas, 161 A.D.2d 370, 371 (1st Dep't 1990); Goho Equities v. Weiss, 149 Misc.2d 628, 630 (App. Term 1st Dep't 1991);Greeting Card Publishers v. Spencer, 141 Misc.2d 800, 802 (Civ.Ct. N.Y. Co. 1988); Cobra Resources v. Dumpl, Inc., 138 Misc.2d 91, 94 (Civ.Ct. N.Y. Co. 1987). Based on conflicting evidence, including respondent's own affidavit, regarding whether he has in fact used the loft unit for residential purposes and petitioners have condoned that use, the court has denied respondent's motion insofar as it seeks to dismiss the proceeding entirely. Matter of Sara L., 249 A.D.2d 23 (1st Dep't 1998);Carlin v. Crum Forster Ins. Co., 191 A.D.2d 373 (1st Dep't 1993);King David Assocs. v. Schonberger, 255 A.D.2d 423, 425 (2d Dep't 1998).See U.B.O. Realty Corp. v. Mollica, 257 A.D.2d 460 (1st Dep't 1999);Metzendorf v. 130 W. 57 Co., 132 A.D.2d 262, 265 (1st Dep't 1987); Ten Be or Not Ten Be, Inc. v. Dibbs, N.Y.L.J., June 12, 1985 (App. Term 1st Dep't), aff'd, 117 A.D.2d 1028 (1st Dep't 1986).
B. Petitioners' Motion for Summary Judgment
Petitioners, on the other hand, have cross-moved for summary judgment, alleging that respondent's unit has been used for commercial purposes since 1989, when, after evicting the residential occupants in 1988, petitioners filed an irrevocable restrictive covenant with the New York City Loft Board agreeing to maintain unit 3W as commercial for 15 years. 29 R.C.N.Y. § 2-08.1(b) (formerly § 2-08(j)(2)). In 1994, the Loft Board determined that petitioners were in compliance with the recorded covenant, and therefore unit 3W was not an IMD unit, based in part on an affidavit petitioners had procured from respondent that he was using the unit for commercial purposes.
In opposition, respondent relies on his current claim regarding the premises' status. First, he acnowledges that in 1988, before he moved into his loft unit, petitioners purchased its residential fixtures from the outgoing tenant for fair market value. This purchase of IMD unit improvements would have removed the unit from rent regulation, but for respondent's contention that the building housed at least five other residential units. MDL § 286(6). He further contends that unit 3W continued to be used residentially until 1992, when he moved in. None of these allegations regarding occurrences predating respondent's occupancy, however, is on personal knowledge. Thomas v. Our Lady of Mercy Med. Ctr., 289 A.D.2d 37, 38 (1st Dep't 2001); Perez v. Brux Cab Corp., 251 A.D.2d 157, 159 (1st Dep't 1998); Ladaro v. New York City Bldrs. Group, 271 A.D.2d 574, 576 (2d Dep't 2000).
Since 1992, in any event, respondent alleges that he has used unit 3W for residential purposes and petitioners have condoned that use, in violation of the recorded restrictive covenant filed with the Loft Board. See, e.g., 182 Fifth Ave. v. Design Dev. Concepts, 300 A.D.2d 198, 199 (1st Dep't 2002); Tracto Equipment Corp. v. White, N.Y.L.J., Mar. 21, 1997, at 36 (App. Term 2d Dep't); 315 Berry Street Corp. v. Huang, N.Y.L.J., Feb. 5, 2003, at 21 (Civ.Ct. Kings Co.). He explains that petitioners, through fraud, duress, or undue influence, induced him to sign the 1994 affidavit of commercial use, by promising him subletting rights if he signed, threatening to make his tenancy miserable if he did not sign, and further promising never to use the affidavit against him.Gibli v. Kadosh, 279 A.D.2d 35, 38 (1st Dep't 2000); Polito v. Polito, 121 A.D.2d 614, 615-16 (2d Dep't 1986). See Fruchthandler v. Green, 233 A.D.2d 214 (1st Dep't 1996); Skluth v. United Merchants Mfrs., 163 A.D.2d 104, 106-107 (1st Dep't 1990); Dunn v. Nissan Motor Co., 262 A.D.2d 444, 445 (2d Dep't 1999); Silver v. Starrett, 176 Misc.2d 511, 515-16 (Sup.Ct. N.Y. Co. 1998). To the extent respondent's affidavit waived his claim of residential use under duress or through fraudulent inducement, it invalidates that waiver. Gibli v. Kadosh, 279 A.D.2d at 40-41;Bloss v. Va'ad Harbonim of Riverdale, 203 A.D.2d 36, 37 (1st Dep't 1994); Megler v. Crystal Props. Assocs., 179 A.D.2d 177, 180 (1st Dep't 1992).
II. THE EFFECT OF RESPONDENT'S 1994 AFFIDAVIT AND THE LOFT BOARD'S 1994 DETERMINATION
A. Respondent's Affidavit
Petitioners urge that respondent is estopped from taking a position inconsistent with his position in the 1994 Loft Board proceeding. Judicial estoppel precludes a party from making claims inconsistent with a position he successfully maintained in a prior adjudicatory proceeding. Sancham Realty Corp. v. Taub, 292 A.D.2d 304, 305 (1st Dep't 2002); Secured Equities Invs. v. McFarland, 300 A.D.2d 1137, 1138-39 (4th Dep't 2002). The preclusive effect is the same whether the prior proceeding was administrative or judicial. 67 Vestry Tenants Assn. v. Raab, 172 Misc.2d 214, 219 (Sup.Ct. N.Y. Co. 1997). See Inter-Power of N.Y. v. Niagara Mohawk Power Corp., 208 A.D.2d 1073, 1075 (3d Dep't 1994); Casella v. Crossen, 178 A.D.2d 963 (4th Dep't 1991); Tozzi v. Long Is. R.R. Co., 170 Misc.2d 606, 612-13 (Sup.Ct. Nassau Co. 1996). Assuming the 1994 Loft Board proceeding was an adjudicatory proceeding to which this estoppel doctrine would apply, the flaw in petitioners' argument is that respondent was not a party to and did not take a position in the 1994 proceeding. Kalikow v. 78/79 Co. v. State of New York, 174 A.D.2d 7, 11 (1st Dep't 1992); Abramovich v. Harris, 227 A.D.2d 1000, 1001 (4th Dep't 1996); Hinman, Straub, Pigors Manning v. Broder, 124 A.D.2d 392, 394 (3d Dep't 1986).
Even if respondent is not estopped from relying on his current affidavits attesting to his residential use and to his excuse for attesting to the contrary in 1994, petitioners urge that the current affidavits are "obvious fabrications intended to overcome summary judgment." Carlin v. Crum Forster Ins. Co., 191 A.D.2d 373. See Perez v. Bronx Park S. Assocs., 285 A.D.2d 402, 404 (1st Dep't 2001);Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320 (1st Dep't 2000);Milton Weinstein Assocs v. NYNEX Corp., 266 A.D.2d 138, 139 (1st Dep't 1999); Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570, 571 (2d Dep't 2003). While respondent's prior acknowledged false statement is not to be minimized, the current affidavit of residential use petitioners claim to be a fabrication was not in desperate opposition to their summary judgment motion, but affirmatively put forth in support of respondent's original motion. E.g., Alvarez v. New York City Hous. Auth., 295 A.D.2d 225, 226 (1st Dep't 2002). Second, respondent's excuse for the prior contrary affidavit is plausible, not "obviously fabricated." In fact nothing, other than that one contrary affidavit procured by petitioners, contradicts respondent's evidence of residential use. Matter of Sara L., 249 A.D.2d 23; King David Assocs. v. Schonberger, 255 A.D.2d at 425. See Milton Weinstein Assocs v. NYNEX Corp., 266 A.D.2d at 138-39.
B. The Loft Board's Determination
Finally, petitioners urge that this court may not undo the Loft Board's administrative determination regarding the status of unit 3W at 112-114 West 14th Street. Petitioners claim this determination is both compelled by and equivalent to a zoning resolution prohibiting residential use.See Wolinsky v. Kee Yip Realty Corp., 302 A.D.2d 327, 756 N.Y.S.2d 515, 516 (1st Dep't 2003); Tan Holding Corp. v. Wallace, 187 Misc.2d 687, 688-89 (App. Term 1st Dep't 2001); 315 Berry Street Corp. v. Huang, N.Y.L.J., Feb. 5, 2003, at 21.
As to the first claim, a prohibition against residential use might apply, if, independent of such a prohibition, unit 3W does not qualify for protection under MDL §§ 281-86. Wolinsky v. Kee Yip Realty Corp., 756 N.Y.S.2d at 516. A zoning resolution itself does not disqualify the unit, as MDL § 281(4) provides that buildings or portions of buildings still may meet the definition of an IMD, MDL § 281(2), and be used for residential purposes even if a local zoning resolution prohibits residential use. Tan Holding Corp. v. Wallace, 187 Misc.2d at 689;Miller v. Margab Realty LLC., N.Y.L.J., Apr. 12, 2002, at 19 (Sup.Ct. N.Y. Co.). Consequently, according to petitioners' own evidence, the City of New York, in litigation over § 281(4), stipulated "not to enforce zoning provisions" that would prevent legalization of residential use, Aff. of Christian Green, Ex. H, and thus the only impediment to unit 3W's residential use is "the duly recorded restrictive declaration" that respondent claims petitioners have ignored. Id., Ex. J.
As to petitioners' second claim, it turns on "the distinction between ad hoc decision making based on individual facts and circumstances, and rulemaking, meaning 'any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future.'" Alca Indus. v. Delaney, 92 N.Y.2d 775, 778 (1999) (citation omitted). See DeJesus v. Roberts, 296 A.D.2d 307, 310 (1st Dep't 2002). A zoning resolution, like the Loft Board's own rules, "is a law of general applicability," Sour Mtn. Realty v. New York State Dept. of Envtl. Conservation, 260 A.D.2d 920, 923 (3d Dep't 1999): "a fixed, general principle to be applied . . . without regard to other facts and circumstances relevant to the regulatory scheme." Roman Catholic Diocese v. New York State Dept. of Health, 66 N.Y.2d 948, 951 (1985); DeJesus v. Roberts, 296 A.D.2d at 310; 439 East 88 Owners Corporation v. Tax Commission of the City of New York, N.Y.L.J., Dec. 9, 2002, at 23 (Sup.Ct. N.Y. Co.); 1700 York Assocs. v. Kaskel, 182 Misc.2d 586, 593 (Civ.Ct. N.Y. Co. 1999). While a zoning provision does not necessarily regulate the general public, zoning requirements are policies "invariably applied across-the-board" to the segment of the population within their ambit "without regard to individual circumstances or mitigating factors." Schwartfigure v. Hartnett, 83 N.Y.2d 296, 301 (1994). See Cordiero v. Corbisiero, 80 N.Y.2d 771, 772 (1992); Singh v. Taxi Limousine Commn. of City of N.Y., 282 A.D.2d 368 (1st Dep't 2001); 439 East 88 Owners Corporation v. Tax Commission of the City of New York, N.Y.L.J., Dec. 9, 2002, at 23; 1700 York Assocs. v. Kaskel, 182 Misc.2d at 593-94. Once formulated, a zoning resolution, a requirement of general applicability, applies uniformly to all buildings within the regulated zone, without further account of their characteristics. Schwartfigure v. Hartnett, 83 N.Y.2d at 301; Sour Mtn. Realty v. New York State Dept. of Envtl. Conservation, 260 A.D.2d at 923; 439 East 88 Owners Corporation v. Tax Commission of the City of New York, N.Y.L.J., Dec. 9, 2002, at 23; 1700 York Assocs. v. Kaskel, 182 Misc.2d at 594.
The Loft Board's determination that unit 3W was "not an IMD" based on circumstances individual to that unit, "that on September 9, 1989, the owner recorded with the City Registry an irrevocable covenant dated June 20, 1988," Green Aff., Ex. I, "is significantly different" from enacting a "legislative norm." Alca Indus. v. Delaney, 92 N.Y.2d at 778. Dictating non-IMD status for unit 3W by reference to a particular owner's past agreement is not a legislative prescription because the determination covers only that building and owner and does not establish a standard of conduct applicable to any other building or owner. Id. at 778-79; New York City Tr. Auth. v. New York State Dept. of Labor, 88 N.Y.2d 225, 229-30 (1996); Williams v. Smith, 72 N.Y.2d 939, 940 (1988); Roman Catholic Diocese v. New York State Dept. of Health, 66 N.Y.2d at 951. A legislative enactment or rulemaking, by contrast, sets and implements a fixed, blanket standard or procedure that directs action to be taken in the future and hence may be determinative of future adjudications, "regardless of individual circumstances." Alca Indus. v. Delaney, 92 N.Y.2d at 778. See Cordiero v. Corbisiero, 80 N.Y.2d at 772;Schwartfigure v. Hartnett, 83 N.Y.2d at 301; J.D. Posillico, Inc. v. Department of Transp. of State of N.Y., 160 A.D.2d 1113, 1114 (3d Dep't 1990); 1700 York Assocs. v. Kaskel, 182 Misc.2d at 593-94.
In sum, neither any zoning requirement nor any Loft Board ruling prohibits respondent's residential use of unit 3W. The Loft Board adjudication was based on and applicable to only petitioners' version of the circumstances. Respondent's version of the circumstances requires a new adjudication.
III. THE PROPER ADJUDICATORY BODY
On April 24, 2003, respondent commenced a proceeding before the Loft Board to determine whether he is a protected residential tenant under MDL §§ 281-86. 29 R.C.N.Y. § 2-09(b)(1). He maintains he learned of the Loft Board's 1994 determination only after petitioners commenced this eviction proceeding and hence too late to intervene, appeal, or request reconsideration. CPLR § 217; 29 R.C.N.Y. §§ 1-07(b), 1-07.1(b). Petitioners do not dispute respondent's unawareness nor claim respondent consciously "opted out" of the 1994 proceeding brought by the landlord. Marder v. New York State Div. of Hous. Community Renewal, 220 A.D.2d 204 (1st Dep't 1995).
A. Concurrent Jurisdiction
While the Loft Board may determine compliance with a restrictive covenant to maintain a unit as commercial and its consequent disqualification from IMD status, as the Board did in 1994, the court also may apply the covenant and governing rules and make these determinations. 29 R.C.N.Y. § 2-08.1(b). The court's determinations need not await the Loft Board's determinations of the issues. County Dollar Corp. v. Douglas, 161 A.D.2d at 371; Suraci v. Mucktar, 187 Misc.2d 848, 850 (Civ.Ct. N.Y. Co. 2000). "'Unless the Legislature has expressed an explicit intention to vest exclusive original jurisdiction in the administrative agency,' the court has concurrent jurisdiction." Id. (quoting County Dollar Corp. v. Douglas, 161 A.D.2d at 371).
Yet once the Loft Board has made an administrative determination that a landlord has complied under the Loft Board rules, the court must defer to the Board's sound discretion and lacks jurisdiction to make a compliance determination in the first instance. 29 R.C.N.Y. § 2-08.1(b);Perlrose Realty Corp. v. New York City Loft Board, 145 A.D.2d 159, 161 (1st Dep't 1989); Suraci v. Mucktar, 187 Misc.2d at 850. This deference, however, does not preclude the court's determination when the Loft Board has not ruled on the issue. Id.
Here, the Loft Board has made an adjudicatory determination, but it does not bind respondent. Since he was not a party to the agency's adjudicatory proceeding, that ruling does not preclude whatever defenses he may have to this eviction proceeding, where the landlord claims his unit is commercial and not an IMD unit based on compliance with the restrictive covenant. Marder v. New York State Div. of Hous. Community Renewal, 220 A.D.2d 204; Suraci v. Mucktar,
187 Misc.2d at 850. An obvious defense is that the landlord has not complied with the restriction against residential use. Having occupied the unit during the period when petitioners claim compliance, respondent has standing to dispute that claim and the consequences flowing from it. See 19 W. 36th Holding Corp. v. Parker, 193 Misc.2d 519, 523 (Civ.Ct. N.Y. Co. 2002). Presented with this defense, the court may adjudicate whether the landlord has violated the restriction. Suraci v. Mucktar, 187 Misc.2d at 850.
Adjudicating this claim requires application of the statutes and regulations governing lofts, but not Loft Board expertise to which judicial deference is necessary. The court in summary proceedings regularly adjudicates disputes involving interpretation of these laws and whether units are subject to them, as well as compliance with restrictive covenants. These questions, along with questions as to the collectible rent, may be determined by the Loft Board, but need not be. Dundee Equity Corp. v. Johnston, 103 A.D.2d 692, 693 (1st Dep't 1984); Eli Haddad Corp. v. Redmond Studio, 102 A.D.2d 730 (1st Dep't 1984); Baxter v. Captain Crow Mgt., 128 Misc.2d 254, 261 (Sup.Ct. N.Y. Co. 1985). See Axelrod v. Duffin, 154 Misc.2d 310, 313-14 (App. Term 1st Dep't 1992);Baxter v. Captain Crow Mgt., 128 Misc.2d at 263-64; Suraci v. Mucktar, 187 Misc.2d at 851.
B. Primary Jurisdiction
Although the court has concurrent jurisdiction over the issues pertaining to loft units presented here, it is to be exercised with an eye toward uniform evaluation of the relevant factors and avoidance of divergent determinations. Davis v. Waterside Hous. Co., 274 A.D.2d 318, 319 (1st Dep't 2000); Eli Haddad Corp. v. Redmond Studio, 102 A.D.2d 730;Markow-Brown v. Board of Educ., Port Jefferson Pub. Schools, 301 A.D.2d 653, 654 (2d Dep't 2003); Heller v. Coca-Cola Co., 230 A.D.2d 768, 769-70 (2d Dep't 1996). Respondent may not use this proceeding to attack the Loft Board's prior administrative decision. 19 W. 36th Holding Corp. v. Parker, 193 Misc.2d at 523. Particularly since he has commenced a new Loft Board proceeding, and only the Board may undo its prior determination, the goal of uniformity dictates that the agency be afforded the opportunity to achieve consistency in the administrative adjudications, even where the parties in the current administrative proceeding differ from the single party in the prior proceeding. 29 R.C.N.Y. § 1-09; Marder v. New York State Div. of Hous. Community Renewal, 220 A.D.2d 204.
While the claim as to unit 3W's status was originally cognizable in the court, the 1994 proceeding before the Loft Board placed resolution of the issue in the agency's hands. Markow-Brown v. Board of Educ., Port Jefferson Pub. Schools, 301 A.D.2d at 653-54; Heller v. Coca-Cola Co., 230 A.D.2d at 769. The agency may not have adjudicated the issue upon a full record and consideration of all concerned parties' positions; nevertheless, the agency has considered the issue over the course of more than a decade. Id. at 770. Therefore the court accords the Loft Board primary administrative review, stays this eviction proceeding, and withholds its ultimate determination until resolution of the pending administrative proceeding. 29 R.C.N.Y. § 1-09; Davis v. Waterside Hous. Co., 274 A.D.2d at 319; Eli Haddad Corp. v. Redmond Studio, 102 A.D.2d 730; Axelrod v. Duffin, 154 Misc.2d at 314.
IV. EXPEDITION OF THE LOFT BOARD PROCEEDING
The duration of thIS stay and hence the delay in this proceeding is dependent on the duration of and any delay in the Loft Board proceeding. As a condition of the stay, respondent shall not delay the administrative proceeding, and to the extent the progress of the proceeding is in his control, he shall take all possible steps to expedite the proceeding.
Since the progress of this summary proceeding now depends on the Loft Board proceeding, for this proceeding to remain consistent with its objective, to provide a simple, short, quick, and efficient determination, the Loft Board proceeding must be expedited. Suraci v. Mucktar, 187 Misc.2d at 851. Respondent's precarious medical condition further dictates an expeditious resolution of his tenancy's status and the claims by and against him. Weinreb Mgt. v. New York State Div. of Hous. Community Renewal, 297 A.D.2d 221, 223 (1st Dep't 2002). Both sides are entitled to know, as quickly as possible, who is obligated to whom for unpaid or overpaid rent, so they may take steps to limit their future exposure. Thus, "without intruding on the prerogative of agency management," this case warrants "a priority." Bloom v. Div. of Hous. Community Renewal of State of N.Y., 138 Misc.2d 523, 529 (Sup.Ct. N.Y. Co. 1988).
V. CONCLUSION
Although this court ultimately might reach the same result as the 1994 Loft Board adjudication, it does not dictate that same result without consideration of respondent's evidence, as well as any relevant factual developments since 1994, regarding the status of the premises respondent occupies. To avoid conflicting determinations, however, the court provides the agency an opportunity to revisit the issue in light of the new evidence. On the condition that the Loft Board conducts an expedited review of respondent's pending application, the court defers to the agency's primary jurisdiction and stays this proceeding, including determination of petitioners' summary judgment motion, pending the administrative determination. Petitioners may move to lift the stay upon receiving that determination or upon a showing that the determination is unduly delayed. Id. at 530.