Morton v 338 W. 46th St. Realty, LLC

[*1] Morton v 338 W. 46th St. Realty, LLC 2014 NY Slip Op 50075(U) Decided on January 28, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 28, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570150/13.

George Morton, Edward Eisele, Robert Leonardi, Ute Keyes, a/k/a Ute Schmid and Robyn Davis, Plaintiffs-Appellants,

against

338 West 46th Street Realty, LLC, Defendant-Respondent.

In consolidated actions, plaintiffs appeal, as limited by their briefs, from that portion of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered March 21, 2012, which referred the matter to the State Division of Housing and Community Renewal ("DHCR") for a determination of plaintiffs' rent overcharge claims, and marked the matter off calendar pending such determination.

Per Curiam.

Order (Andrea Masley, J.), entered March 21, 2012, insofar as appealed from, reversed, with $10 costs, and the matter remanded to Civil Court for a merits determination of the parties' respective cross motions.

The plaintiff-tenants' longstanding rent overcharge claims should not have been referred back to DHCR for determination, where the agency itself properly declined to "assume jurisdiction" over these same claims by way of a March 27, 2009 order, and the agency's determination was upheld as rational in the context of defendant-landlord's unsuccessful CPLR article 78 challenge (see Matter of 338 W. 46th St. Realty, LLC v DHCR, 101 AD3d 439, 440 [2012]). In the circumstances here present, it was for the court to entertain and adjudicate plaintiffs' overcharge claims pursuant to its well-recognized concurrent jurisdiction over such matters (see Downing v First Lenox Terrace Assocs., 107 AD3d 86, 91 [2013]). The result is the same whether or not dictated by considerations of collateral estoppel (see generally Jeffreys v Griffin, 1 NY3d 34, 39-41 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 28, 2014