Opinion
570169/04.
Decided October 17, 2005.
Defendants appeal from that portion of an order of the Civil Court, New York County, dated October 24, 2003 (Lucy Billings, J.) which granted plaintiffs' motion for summary judgment seeking to enforce a Division of Housing and Community Renewal (DHCR) fair market rent appeal order directing a refund of excess rent as against defendant 251 CPW Housing Ltd., awarded plaintiffs prejudgment interest from the midpoint of the periods during which tenants paid such excess rent, and awarded tenants attorneys' fees incurred in prosecuting this plenary action to be assessed at a hearing. Plaintiffs' cross-appeal from so much of the aforesaid order as granted summary judgment dismissing the complaint as against defendant Simon Haberman.
Order dated October 24, 2003 (Lucy Billings, J.) modified by deeming the dismissal of plaintiffs' claim of "alter ego" liability against Simon Haberman to be without prejudice; as modified, order affirmed, without costs.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Plaintiffs-tenants commenced this plenary action against the corporate defendant to recover excess rent awarded them in a fair market rent appeal. They also sought recovery against defendant Haberman, principal of the defendant corporation, who allegedly misused the corporate form for purposes of evading liability for excess rent charges.
The defense attack on the order to refund excess rent collected is without merit, and is in any event barred by the doctrine of collateral estoppel based on prior judicial review of the underlying fair market rent appeal ( Matter of Jemrock Realty Co. v. Roldan, 256 AD2d 122; Rosado v. Vaccaro, 196 Misc 2d 634 [App Term, 2003]). Plaintiffs were properly awarded attorneys' fees incurred in prosecuting this plenary action ( Chechak v. Hakim, 269 AD2d 333; Paganuzzi v. Primrose Mgt. Co., 268 AD2d 213), as well as prejudgment interest on their rent overpayments from the midpoint of each overcharge period ( see Busbee v. Ken-Rob Co., 280 AD2d 406, lv denied 97 NY2d 605).
While it is true that defendant Haberman was not named a party to the fair market rent appeal, he did file a petition in his individual capacity for administrative review, which was denied. He has also been the record owner of the building since 1972, rendering summary dismissal of the claim against him inappropriate ( see generally Sciarra v. 531 E. 83rd St. Owners Corp., 8 AD3d 159). Civil Court does not have jurisdiction to grant a piercing of the corporate veil ( see 19 W. 45th St. Realty Co. v. Doram Elec. Corp., 233 AD2d 184, 185). Accordingly, we modify Civil Court's order to deem the dismissal as against Haberman to be without prejudice to plaintiff's equitable remedies in a proper forum.
This constitutes the decision and order of the Court.