Matter of D'Alessandro v New York State Div. of Hous. & Community Renewal

Matter of Matter of D'Alessandro v New York State Div. of Hous. & Community Renewal 2012 NY Slip Op 00721 Decided on February 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 2, 2012
Mazzarelli, J.P., Friedman, Catterson, Renwick, Román, JJ.
6670 115845/09

[*1]In re Salvatore D'Alessandro, et al., Petitioners-Appellants,

v

New York State Division of Housing and Community Renewal, Respondent-Respondent. Frederick J. Rudd, et al., Intervenors-Respondents.




Collins, Dobkin & Miller LLP, New York (W. Miller Hall of
counsel), for appellant.
Gary R. Connor, New York (Jeffrey G. Kelly of counsel), for
respondent.
Belkin Burden Wenig & Goldman, LLP, New York (Alexa
Englander of counsel), for intervenors-respondents.

Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered August 24, 2010, which granted the motion of intervenors, the owners as tenants-in-common of the subject apartment, to intervene, denied the petition, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

In a prior DHCR proceeding commenced in 2005, petitioner Andres Baltra sought to have "the legal rent removed" from his lease because it was "not valid," and have it replaced by the "preferential rent" stated in the lease. DHCR rejected Baltra's claim that the registered legal rent was "not valid," and established the legal rent for the two-year period running from December 1, 2004, through November 30, 2006. Baltra never appealed from that order, which became final.

In the instant proceeding, petitioners again seek to "remove" the legal rent, asserting that it should be replaced with the preferential rent. This issue is identical to the claim rejected by DHCR in the 2005 order. Petitioners make no substantial argument that Baltra did not have a full and fair opportunity to litigate the issue of the validity of the legal rent in the 2005 proceeding. Thus, the doctrine of collateral estoppel precludes petitioners from relitigating the issue of the legal rent for the apartment which includes the newly advanced theory that the initial 1993 lease was fraudulent (see Matter of Gersten v 56 7th Ave. LLC, 88 AD3d 189, 201-02 [*2][2011]; 9-10 Alden Place, LLC v Chen, 279 AD2d 618, 619 [2001]).

We have considered petitioners' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 2, 2012

CLERK