Opinion
570614/10
03-27-2013
Anita Rapone and Charles R. Simpson, Petitioners-Landlords- Appellants, v. Esther Katz and Theresa Collins, Respondents-Tenants-Respondents.
PRESENT: , P.J., Shulman, Schoenfeld, JJ
Landlords appeal from (1) an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated September 26, 2011, which granted tenants' motion for summary judgment dismissing the petition in a holdover summary proceeding, and (2) an order (same court and Judge), dated December 16, 2011, which denied landlords' motion for leave to reargue and renew the aforesaid order.
Per Curiam.
Orders (Brenda S. Spears, J.), dated September 26, 2011, and December 16, 2011, insofar as appealable, affirmed, with one bill of $10 costs.
We agree, essentially for reasons stated by the motion court, that petitioner-landlords are barred from relitigating the issue of whether the demised apartment premises is statutorily exempt from rent stabilization based on the building's claimed status as a cooperative (see Rent Stabilization Law [Administrative Code of City of NY] § 26-504[a]), where this same issue was raised and resolved in tenants' favor in a prior holdover eviction proceeding between the parties (see Rapone v Katz, 30 Misc 3d 132[A], 2011 NY Slip Op 50043[U][App Term, 1st Dept 2011], lv denied 2011 NY Slip Op 82467[U][App Div, 1st Dept 2011]). While the primary focus of the prior litigation centered on the building's claimed cooperative status on or before June 30, 1974 (see Rent Stabilization Code [9 NYCRR] § 2520.11[1]), landlords cannot avoid the preclusive effect of our earlier adverse ruling by advancing an alternative legal argument for recovery — that, under the above-cited Code provision, the apartment is exempt from stabilization coverage by dint of the building's cooperative status after June 30, 1974. Notably, landlords had unsuccessfully sought to advance their alternative argument in the earlier litigation by way of a mid-trial application to conform the pleadings to the proof, and should not now be afforded a second bite at the apple in resurrecting that same argument here. "Where the same foundational facts serve as a predicate for each proceeding, differences in legal theory or relief sought do not create a separate cause of action" (Greaves v Ortiz, 65 AD3d 1085, 1085-1086 [2009], citing Matter of Reilly v Reid, 45 NY2d 24, 26 [1978]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.