Opinion
June 19, 1986
Appeal from the Supreme Court, New York County (Martin Evans, J.).
Respondent-respondent Jacob Winter is the owner and managing agent, through seven corporations of which he is president and principal shareholder and with three other related individuals, also respondents, of 10 rent-stabilized residential apartment buildings located in the Crown Heights section of Brooklyn, New York.
In March 1984, the Attorney-General commenced the underlying special proceeding for injunctive relief, restitution and damages, relating to respondents' rent practices for these buildings. The petition advanced six causes of action charging persistent illegal conduct pursuant to Executive Law § 63 (12). These causes of action are as follows: (1) rent overcharges in violation of Code of Rent Stabilization Association of New York City, Inc. (RSC) § 62 (A); (2) failure to provide rental histories in violation of RSC § 42 (A); (3) violation of requirements for timely offering of lease renewals according to RSC § 50; (4) overcharging on security deposits, requiring over one month's rent, in violation of RSC § 63; (5) illegal "renovation" fees required of tenants in violation of RSC § 62; and (6) no interest provided on rental security deposits in violation of General Obligations Law § 7-103.
The Attorney-General sought to enjoin respondents from engaging in the illegal conduct alleged in the petition, and to direct respondents (1) to charge the lawful rents and refund the excess rents previously paid; (2) to provide rental histories; (3) to provide renewal leases; (4) to refund security deposits, being advance rent payments exceeding one month's rent, and any fees collected; and (5) to comply with General Obligations Law § 7-103 Gen. Oblig. regarding interest on rental security.
Respondents' answer stated a general denial of the allegations in the petition and raised the defense of, inter alia, the primary jurisdiction of the Conciliation and Appeals Board (succeeded by the Division of Housing and Community Renewal [DHCR]).
Special Term dismissed the first five causes of action on the basis that the DHCR had primary jurisdiction. The court also held that the sixth cause of action, based upon General Obligations Law article 7, was put in issue by the respondents' denial, and ordered a trial thereon.
We disagree with the decision at Special Term and so we reverse.
The Attorney-General is clearly authorized, under Executive Law § 63 (12), to commence a proceeding where repeated fraud or illegality regarding the rent laws is involved. (State of New York v. Solil Mgt. Corp., 128 Misc.2d 767, 772-773, affd without opn 114 A.D.2d 1057, lv denied 67 N.Y.2d 606; State of New York v Spodex, NYLJ, Mar. 16, 1982, p 6, col 2 [Sup Ct, N Y County] affd 89 A.D.2d 835; Matter of Wiener v. Abrams, 119 Misc.2d 970, 973.) Appellant is so authorized because the violations alleged in the petition fall well within the ambit of "repeated fraudulent or illegal acts", pursuant to Executive Law § 63 (12).
In addition, the contention that the doctrine of primary jurisdiction precludes the Attorney-General from seeking the instant relief in the courts is inappropriate. If primary jurisdiction was applicable in this case, the court would be compelled to defer to the expertise of the DHCR for an adjudication. (See, People v. Port Distrib. Corp., 114 A.D.2d 259; but see, Haddad Corp. v. Redmond Studio, 102 A.D.2d 730 .) But because it is regularly within the province of the court to determine whether violations of regulations have occurred, as is the case herein, the doctrine is inapplicable. (See, People v Port Distrib. Corp., 114 A.D.2d, at p 266.)
Finally, we find that Special Term should have granted the relief as requested in the petition on the sixth cause of action. A summary disposition thereof is warranted because the respondents have failed to raise, beyond mere conclusory denials, any triable issues of fact. (See, Matter of State of New York v Daro Chartours, 72 A.D.2d 872; see also, Matter of Lefkowitz v McMillen, 57 A.D.2d 979.) Therefore, the first five causes of action are reinstated, and we find for petitioner on the sixth, General Obligations Law article 7, cause of action. Inasmuch as no dollar amount for moneys due was specified in the petition, this cause of action is remanded for an assessment thereof.
Concur — Kupferman, J.P., Sandler, Carro, Lynch and Kassal, JJ.