Opinion
June 26, 1990
Appeal from the Supreme Court, New York County (Francis Pecora, J.).
Appellants' argument that the Supreme Court was without authority to issue the order, since exclusive jurisdiction allegedly rests with DHCR, has twice been considered and rejected by this court. Accordingly, the doctrine of law of the case requires that the instant argument likewise be rejected. (Martin v. City of Cohoes, 37 N.Y.2d 162, 165.) In any event, the record of the proceedings below supports the view that plaintiff met the requisite criteria to demolish the building under the Rent and Eviction Regulations and the New York City Rent and Rehabilitation Law, i.e., that the cost of removing violations filed against the structure would substantially equal or exceed the assessed value of the structure. (New York City Rent and Eviction Regulations [9 N.Y.CRR] § 2204.8 [a] [1]; Administrative Code of City of New York § 26-408 [b] [4] [a].) Additionally, plaintiff demonstrated entitlement to withdraw the premises from the rental market by producing evidence of his inability to obtain a net annual return of 8 1/2% of the assessed value of the property and demonstrating that he had not intentionally or willfully impaired his ability to obtain such a return. (Administrative Code § 26-408 [b] [5] [a].) Appellants' arguments, which would lead to a contrary result by the employment of different means of analysis, are rejected.
Concur — Sullivan, J.P., Ross, Milonas and Smith, JJ.
Based upon the prior rulings in this matter, which constitute law of the case, I am constrained to concur in the result. However, it should be noted that the issues raised upon this appeal regarding the valuation of the property and the costs of removing violations at the premises are complex and require for their resolution the particular technical expertise of the Division of Housing and Community Renewal. Therefore, under the doctrine of primary jurisdiction, they should not have been entertained by the courts in the first instance (compare, People v. Port Distrib. Corp., 114 A.D.2d 259, 265; Eli Haddad Corp. v. Cal Redmond Studio, 102 A.D.2d 730). The question of concurrent jurisdiction is secondary for, as the Court of Appeals has observed: "Though the agency's jurisdiction is not exclusive, the court postpones its action until it has received the agency's views" (Capital Tel. Co. v. Pattersonville Tel. Co., 56 N.Y.2d 11, 22). The better practice would have been to withhold judicial determination of this matter in the exercise of discretion pending resolution of the proceedings before the administrative agency (Eli Haddad Corp. v. Cal Redmond Studio, supra; see also, Matter of Raynes Assocs. Ltd. Partnership v. State Div. of Hous. Community Renewal, 142 Misc.2d 90).