Villas of Forest Hills Company v. Lumberger

Full title: VILLAS OF FOREST HILLS COMPANY, Respondent, v. LOIS LUMBERGER, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 16, 1987

128 A.D.2d 701 (N.Y. App. Div. 1987)

Opinion

March 16, 1987

Appeal from the Civil Court of the City of New York, Queens County (Harbater, J.).

Ordered that the order of the Appellate Term is reversed insofar as appealed from, on the law, without costs or disbursements, and (1) the appeal from the order dated January 9, 1985, which denied the appellant's motion to disqualify Rosenberg Estis, P.C., is dismissed (see, Matter of Aho, 39 N.Y.2d 241, 248); (2) the judgment is reversed, and so much of the order dated January 9, 1985 as granted the petitioner's motion to dismiss the appellant's affirmative defense is vacated, and the matter is remitted to the Civil Court of the City of New York, Queens County, for a determination as to whether the petitioner is in compliance with the Rent Stabilization Law and Code and whether enforcement of Opinion 15,680 of the Conciliation and Appeals Board of the City of New York would be contrary to public policy because the petitioner is not in compliance with the Rent Stabilization Law and Code; and (3) the appeal from the order dated February 13, 1985 is dismissed as academic, in light of our determination with respect to the judgment.

The appeal from the intermediate order dated January 9, 1985, which denied the appellant's motion to disqualify Rosenberg Estis, P.C., must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, supra). The issues raised with respect to the orders dated January 9, 1985 are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

In a holdover proceeding brought pursuant to RPAPL 711 in the Civil Court of the City of New York, a landlord must allege that the apartment is subject to the New York City Rent and Rehabilitation Law (Administrative Code of the City of New York former § Y51-1.0 et seq.; now § 26-401 et seq.), the New York City Rent Stabilization Law (Administrative Code former § YY51-1.01 et seq.; now § 26-501 et seq.), or neither law. In the case of the owner of a building under the Rent Stabilization Law (as is the petitioner), the landlord must also allege that he is a member in good standing of the Rent Stabilization Association and that he is in compliance with the Rent Stabilization Law and Code (see, 22 N.Y.CRR former 2900.21 [e] [2]).

Although the failure to make the required allegation will not deprive the hearing court of jurisdiction of the matter since the defective petition may be corrected by amendment (see, Birchwood Towers #2 Assocs. v. Schwartz, 98 A.D.2d 699, 700), the need to plead rent regulatory status and compliance with the appropriate statutes and codes and to actually be in compliance therewith is necessary for a court to order the requested relief (see, 251 E. 119th St. Tenants Assoc. v. Torres, 125 Misc.2d 279, 282; Darnet Realty Corp. v. Markley, 63 Misc.2d 29, 31; United Institutional Servicing Corp. v. Santiago, 62 Misc.2d 935, 936). The serious charges leveled against the petitioner landlord by the appellant could, if corroborated, place the landlord in noncompliance with the Rent Stabilization Law and Code. If so, the remedy of a summary proceeding pursuant to RPAPL 711 would be unavailable to the landlord since it would, in that case, not be in compliance with an essential requirement.

Apparently, the Civil Court made no determination with respect to whether the landlord was in compliance with the Rent Stabilization Law and Code. While we observe that the hearings currently being conducted by the Division of Housing and Community Renewal (hereinafter DHCR) involve some of the same factual issues as those pertaining to the landlord's compliance with the Rent Stabilization Law and Code, the protracted nature of those hearings renders it inappropriate to defer to the DHCR and await its decision in this already 2 1/2-year-old summary proceeding. Therefore, the matter must be remitted to the Civil Court for a determination on this issue.

The tenant also attempts to challenge the validity of Opinion 15,680 of the Conciliation and Appeals Board of the City of New York (hereinafter CAB) in this holdover proceeding. The exclusive remedy for review of a determination of the CAB is a CPLR article 78 proceeding and such determination will not be disturbed if it has a factual basis in the record, a reasonable basis in the law, and is neither arbitrary nor capricious (Greystone Mgt. Corp. v Conciliation Appeals Bd., 94 A.D.2d 614, 616-617, affd 62 N.Y.2d 763; 520 E. 81st St. Assocs. v. Lenox Hill Hosp., 76 Misc.2d 892, 893, affd 47 A.D.2d 513, affd 38 N.Y.2d 525). The tenant has already challenged the validity of the CAB opinion in a prior proceeding pursuant to CPLR article 78 and on appeal from the judgment entered in that proceeding (see, Matter of Villas of Forest Hills Co. v. New York City Conciliation Appeals Bd., 104 A.D.2d 1063). Therefore, the tenant may not challenge the CAB opinion in this proceeding. We further note that the tenant Lumberger's challenge to the CAB opinion on the ground that the landlord has not complied with the conditions thereof is without merit. However, we must vacate so much of the order dated January 9, 1985 as granted the petitioner's motion to strike the appellant's affirmative defense, since the affirmative defense also asserts that the enforcement of the CAB order would be contrary to public policy because the petitioner is not in compliance with the Rent Stabilization Law and Code.

The tenant also challenges a determination of the Civil Court in its order dated January 9, 1985, refusing to disqualify Rosenberg Estis, P.C., as counsel for the landlord. The tenant contends that since one attorney, William E. Rosen, now associated with that firm, worked for the CAB at the time the opinion was promulgated and actually represented the CAB in prior proceedings brought by both the appellant and the respondent, that attorney was somehow acting on the behalf of the tenant in those prior proceedings. We find the tenant's argument unpersuasive. The attorney Rosen did not represent the tenant. Rather, his client was the CAB. He has had no involvement with the current matter. Therefore, his association with Rosenberg Estis, P.C., does not require disqualification of that firm from representation of the landlord in this proceeding. Further, the tenant's delay in seeking the firm's disqualification bars her from obtaining that relief at this time (see, Thomas Supply Equip. Co. v. White Fathers, 53 A.D.2d 607; Matter of Huie, 2 A.D.2d 163, 165). Thus, the order dated January 9, 1985, which denied the appellant's motion to disqualify Rosenberg Estis, P.C., must stand. Niehoff, J.P., Weinstein, Kunzeman and Spatt, JJ., concur.