Opinion
No. 153569/2014.
07-12-2016
Cameron BROWN, Plaintiff, v. DECKER ASSOCIATES LLC, Defendant.
David E. Frazer, Esq., for plaintiff. Kossoff, PLLC Attorneys at Law (Joseph Goldsmith of counsel), for defendant.
David E. Frazer, Esq., for plaintiff.
Kossoff, PLLC Attorneys at Law (Joseph Goldsmith of counsel), for defendant.
GERALD LEBOVITS, J.
Recitation, as required by CPLR 2219(a), of the papers considered in reviewing defendant's motion for summary judgment, plaintiff's cross-motion for summary judgment, and plaintiff's order to show cause to discontinue.
| Papers | Numbered |
|---|---|
| Motion Sequence 1 | |
| Defendant's Notice of Motion | 1 |
| Defendant's Memorandum of Law | 2 |
| Plaintiff's Notice of Cross–Motion | 3 |
| Defendant's Affirmation in Opposition | 4 |
| Affidavit of Martin Zabel | 5 |
| Affidavit of Margaret Clemons | 6 |
| Affidavit of Franklin Meyer | 7 |
| Affidavit in Support of Cross–Motion | 8 |
| Affidavit of Warren Ser | 9 |
| Defendant's Reply Affirmation | 10 |
| Motion Sequence 2 | |
| Plaintiff's Order to Show Cause | 11 |
| Plaintiff's Memorandum of Law | 12 |
| Defendant's Affirmation in Opposition | 13 |
| Defendant's Memorandum of Law | 14 |
This court consolidates motion sequence numbers 1 and 2 for disposition.
Plaintiff moves under CPLR 3217(b) to discontinue this action without prejudice on the ground that the amended Loft Law, MDL Art. 7–C, creates a new claim for coverage with the Loft Board and thus that the Loft Board—and not this court—should hear plaintiff's new claim for Loft Law coverage.
The amended Loft Law creates a claim that did not exist before plaintiff brought his current Supreme Court claim. Plaintiff argues that the amended legislation re-opened the window for coverage applications under MDL 282–a (1). The amended legislation provides that applications to register for coverage of a residential unit for an interim multiple dwelling (IMD) are extended for a two-year period beginning in 2015. The amended legislation creates a new claim for Loft Law coverage of plaintiff's apartment.
Although “[a] Court of competent jurisdiction has concurrent jurisdiction with the Loft Board to hear issues with respect to the Loft Law.” the Loft Board is the proper forum in which this dispute should be decided. (Bikman v. 595 Broadway Assoc., 2012 N.Y. Slip Op 31993[U], *10 [Sup Ct, N.Y. County 2012].) The Loft Board has primary jurisdiction. The purpose of the primary jurisdiction is “to co-ordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statutes with which both are concerned.” (Capital Tel. Co., Inc v. Patterson Tel. Co., Inc., 56 N.Y.2d 11, 22 [1982].)
The doctrine of primary jurisdiction “comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” (Neumann v. Wyandanch Union Free Sch. Dist., 84 AD3d 816, 818 [2d Dept 2011] ). The Loft Board has special expertise over Loft Law issues.
Unlike in Tucker v. Tucker (55 N.Y.2d 378 [1982] ), plaintiff here is not seeking merely to discontinue this case simply to re-file the same claim in hopes of a more favorable outcome. Rather, plaintiff has an entirely new cause of action.
Defendant will not be unfairly prejudiced. (See Blackwell v. Mikevin Mgt. III, Inc., 88 AD3d 836, 837 [2d Dept 2011] [finding that absent a showing of special circumstances such as prejudice to a substantial right to the defendant, a motion to discontinue should be granted].) CPLR 3217(b) provides that a court may grant a motion to discontinue “upon terms and conditions, as the court deems proper.” Plaintiff's claim is dismissed without prejudice for the case to be pursued before the Loft Board. Defendant raises no separate counterclaims other than a claim for attorney fees. Discontinuing this case will avoid expending unnecessary time and expense for both parties.
Plaintiff is prepared to pay defendant's reasonable legal fees in defending this action to make defendant whole. (Affirmation of Plaintiff's counsel at 22.) Paying defendant's attorney fees will negate any prejudice defendant will face. Defendant claims that to make it whole, this court should order plaintiff to pay $95,599.17 in legal fees and costs incurred in defending this action. This court refers the attorney-fee claim to a Special Referee to hear and determine.
Accordingly, it is
ORDERED that plaintiff's motion to discontinue is granted; and it is further
ORDERED that the parties' pending summary-judgment motions are denied as academic; and it is further
ORDERED that the determination of reasonable attorney fees and other costs associated with this proceeding is hereby referred to a Special Referee to hear and determine; and it is further
ORDERED that plaintiff must serve a copy of this order with a notice of entry on all parties and on the Clerk of the General Clerk's Office, which is directed to arrange a date for the reference to a Special Referee for judgment to be entered accordingly.
This opinion is the court's decision and order.