Estate of Bikman v 595 Broadway Assoc.
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Estate of Bikman v 595 Broadway Assoc. 2012 NY Slip Op 31993(U) July 23, 2012 Supreme Court, New York County Docket Number: 110942/11 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 712712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART \ \ .. . Index Number : 110942201I ESTATE OF MlNDA BIKMAN INDEX NO. vs. 595 BROADWAY ASSOCIATE SEQUENCE NUMBER : 001 - MOTtON DATE MOTION 8EQ. NO. DISMISS i d ..................................................................... CASE DISPOSED .MOnON IS: 0ORANTED 0DENIED 2. CHECK AS APPROPRIATE: ............. 3. CHECK IF APPROPRIATE: ................................................ SEllLE ORDER 1. CHECK ONE: 0DO NOT POST NON-FINAL DISPOSITION GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 X f_---____-l---________L___f______________ THE ESTATE OF MINDA BIKMAN, Deceased, By its Administratrix, CHARLA BIKMAN, Plaintiff, Index No. 110942/11 -against595 BROADWAY ASSOCIATES, FILED Defendant. JUL 27 2012 Joan A . Maddon, 5. : NEW YORK (Estate), to recover the cost of improvements made to a loft apartment by Minda Bikman from the loft building's owner, defendant 595 Broadway Associates (595 Broadway), p u r s u a n t to the Loft Law. In t h i s motion, 595 Broadway moves, pursuant to CPLR 3211 (a) (2) and ( 7 ) , for an o r d e r dismissing the complaint. I. Baakground These matters have traveled a tortuous path. Minda Bikman was a rent-regulated tenant in a loft building owned by 595 Broadway, commencing in 1974. It i s alleged that she made improvements to the p r o p e r t y that plaintiff maintains are valued at o v e r $46,000. Minda Bikman died in 1997. Charla B i k m a n , Minda's sister, 1 [* 3] who is an attorney, commenced residence in the l o f t apartment,' signing her sister's name to rent checks. At some point, 5 9 5 Broadway became aware of this illegal arraingement, and brought a proceeding in housing c o u r t to oust Charla Bikman.2 5 9 5 Broadway obtained a final judgment of possession of the l o f t , dated May 11, 1999. N o t . of Mot., Ex. A . 5 9 5 Broadway was also granted a judgment of u s e and occupancy through April 30, 1999. The proceedings which followed involved Charla Bikman in her individual capacity as p u t a t i v e occupant of the loft. Charla Bikman appealed the May 11, 1999 judgment. The Appellate Term, First Department, by an order dated May 20, 1999, granted her request for a stay of eviction, predicated on the continued payment of use and occupancy. Based on t h i s order, 595 Broadway moved to restore the holdover proceeding to obtain a determination of the amount of use and occupancy it was due. A hearing was held on July 30, 1999. Following a hearing, the Housing C o u r t determined, i n a decision dated J u l y 30, 1999, and that the f a i r market value of the loft was $4,800 per month. Id., Ex. C . The decision was affirmed by the Appellate Term, First Department, in June 2000. I I t is unclear whether she lived t h e r e prior to Minda's death. 2Charla Bikman was eventually suspended from the practice of law f o r her subterfuge. 2 [* 4] Y Id., Ex. D.3 The decision of the Appellate Term was subsequently affirmed by the Appellate Division, First Department. E. Ex. Id., The loft has since been completely gutted and renovated, and has been rented to a new tenant, presumably at the newly determined legal rent. 595 Broadway obtained a money judgment against Charla Bikman in the sum of $159,483.90, for back use and occupancy, based on her occupancy of the loft after h e r sister's death, in light of the fair market value which had been determined for the loft. Id., Ex. F. The sum was later modified by the Civil Court to $145,346.88, in an October 31, 2003 order. I d . , Ex. G. This judgment remains unpaid. Charla Bikman commenced a declaratory judgment a c t i o n in Supreme Court, New York County, in 2009, seeking to overturn t h e October 31, 2003 Civil Court judgment. 595 Broadway moved for summary judgment dismissing the complaint in the action. The complaint was dismissed, and, i n decisions d a t e d May 19, 2010, a related motion b r o u g h t by Charla Bikman in opposition was denied, upon her default, when she f a i l e d to appear on t h e motion. In these decisions, Justice Louis B. York, of t h i s c o u r t , a l s o determined that Charla Bikman should not be allowed to bring any further motions r e g a r d i n g these issues without prior judicial 3The Appellate Term, First Department, found no evidence that Charla had ever resided in the loft prior to Minda's death. 3 [* 5] Id., Ex. J. approval from the administrative j u d g e . Charla Bikman moved to vacate the orders on June 9, 2010. While Justice York found that her default was not willful, he nevertheless denied the motion to vacate. Again, Justice York found that it was "appropriate to enjoin [Charla Bikman] from bringing any further actions in the New Y o r k State Unified Court System against 595 Broadway with respect to these i s s u e s and claims without prior approval of the appropriate administrative judge or justice." Id., Ex J, at 12. This order was affirmed by the Appellate Division, First Department, in a decision dated October 4, 2011. Id., Ex. K. A separate branch of proceedings, directly related to the within action, involves Charla Bikman as Administratrix of the Estate. While the above actions and motions were proceeding, 595 Broadway, in 2001, b r o u g h t an abandonment application before the Loft Board, as a result of Minda Bikman's death, which would result in the deregulation of the apartment. The L o f t Board, in an order dated January 9, 2003 (id., Ex. M) , granted the order of abandonment, b u t denied any right claimed by Charla B i h a n , as the Administratrix of the Estate, to be reimbursed for the value of the improvements to the property which had been made by her sister 30 years previously. The o r d e r was affirmed by the Loft Board, in a decision dated May 18, 2006. Id., E x . N. The Estate b r o u g h t an Article 78 proceeding in this court to 4 [* 6] vacate the Loft Board ruling. In an order dated March 28, 2007, Justice Emily Jane Goodman, of this court, annulled the decision of the Loft Board, upon a finding that the Estate was entitled to be recompensed for the costs of the improvements to the l o f t . R e p l y Aff., Ex. A. Of importance to the present action, Justice Goodman remanded the matter to the Loft Board f o r an appraisal of the fixtures and improvements installed and made by the late Minda Bikman in the subject premises. Id. at 5. Judge Goodman s decision was affirmed by the Appellate Division, First Department, and then by the Court of Appeals. In the decision of the Court of Appeals, M a t t e r of B i k m a n v N e w York City L o f t B o a r d (14 NY3d 377 [2010]), the Court r u l e d , in affirming Justice Goodman, that Multiple Dwelling Law 5 286 (6) permits the estate of a deceased tenant to recoup the value of fixtures and improvements made to the property. I d . a t 381. Although Justice Goodman had called for the remand of the matter of the value of the fixtures to the L o f t Board, the matter was never re-presented to the Loft Board by the Estate, and s o , the Loft Board has rendered no opinion on the subject to date. Instead of bringing the matter back to the L o f t Board for congideration, as called for by Justice Goodman, the Estate brings the present action against 595 Broadway, alleging two causes of action, for specific performance, and for interference w i t h contract. 595 Broadway now moves f o r an order dismissing 5 [* 7] this action. The Estate maintains that it need not bring the matter before the L o f t Board, since 595 Broadway has forfeited any right it might have had to challenge the Estate's valuation of the fixtures when 595 Broadway allegedly failed to respond to a document called a Sale of Improvements Disclosure Form ( D i s c l o s i re Form), which was filed by the Estate with the Loft Board in June 2 0 1 1 . 4 Opposition, Ex. B. 595 Broadway claims that it requested further documentation from t h e Estate concerning the method of valuation in the DiSClOSUKe Form, in a letter dated June 28, 2011 (Not. of Mot., Ex. Q), but t h a t the E s t a t e never responded. The Estate claims that 595 Broadway a s k e d the L o f t Board to reject the Disclosure Form, b u t that the Loft Board refused. The Estate now claims that "[tlhere is nothing more f o r the Loft Board to do," as the Estate follpwed L o f t Board regulations b y filing the Disclosure Form (Aff. of Bikman, at 5), and 595 Broadway f a i l e d to p r o p e r l y respond. The Estate claims t h a t its right to the f u l l $46,500 that it claims the fixtures cost in the Disclosure Form is now fully "vested" (id.), a n d that t h e r e need be no valuation proceeding anywhere. Charla Bikman, as Administratrix, claims that she has the immediate right to the 41n the Disclosure Form, Charla represents herself a s the "prospective tenant. Opposition, Ex. B, at 4 . 6 [* 8] $46,500, or that she should be presented with the keys to the loft, in order to purchase the fixtures from the incoming (presumably current) occupant, pursuant .to Multiple Dwelling Law 286 ( 6 ) , and Loft Board regulations. 595 Broadway, in moving to dismiss the matter, raises several arguments. It argues (1) that Charla Bikman lacks standing as Administratrix to bring the a c t i o n ; (2) that she failed to obtain permission to bring the present a c t i o n , as allegedly required by Justice York; (3) that the Loft Board has exclusive jurisdiction over the matter, which cannot be determined here; and (4) that the complaint f a i l s to state a cause of action. 595 Broadway also sugqests that any money the Estate obtains in valuation of the fixtures should be set off from the significantly greater judgment 595 Broadway has obtained against Charla in her individual capacity. 595 Broadway also urges that the valuation of the fixtures would take into account depreciation, rendering the value of the no-longer-existing fixtures to z e r o . 11. Disuusrion As a preliminary matter, 5 9 5 Broadway assertion that the E s t a t e l a c k s standing to bring this action based on Charla Bikman s failure to file annual accounts f o r the Estate, pursuant to the Estates, Powers and Trusts Law(EPTL) is unavailing. The Estate has been recognized a s a valid entity, capable of pursuing 7 [* 9] ' S an action at law, by several courts, and w i l l not be stripped of that right h e r e . T h e r e is no indication that the EPTL prohibits corrective filings of p a s t accounts. 595 Broadway also maintains that Charla Bikman claims to have transferred the Estate's right to t h e valuati'on amount from the Estate to herself. There is, however, no proof that t'his has happened, or that it could be effectuated by Charla Bikman, in any event. 595 Broadway next charges Charla Bikman to account for her failure to obtain permission from the court to bring the current action. However, Justice York's admonition applied t o Charla Bikman personally and the action is p r o p e r l y brought in the person of the Estate, against which there has been no prohibition. Therefore, the Estate did not have to seek permission to commence the present action. 595 Broadway next argues that the L o f t Board has exclusive jurisdiction over the issues raised herein, as Multiple Dwelling Law 5 282 specifies that the L o f t Board's jurisdiction includes the "determination of controversies arising over the fair market value of a residential tenant's fixtures or reasonable moving expenses." Thus, 595 Broadway argues that this court has n o jurisdiction over the valuation issue. Finally, 595 Broadway references Justice'Goodman's decision as the basis for remanding this matter to the agency, as was her specified instruction, 8 [* 10] affirmed at both appellate levels. This court agrees that the Loft Board is the proper forum for the resolution of thisvdispute. However, it does not agree that the Lo ¬t Board has exclusive jurisdiction over the matter. Courts have concurrent jurisdiction with the Loft Board in many particulars. See e . g . O'Flaherty v S c h w i m m e r , 158 Misc 2 d 420, 4 2 3 ( S u p Ct, NY County 1993) ( " [ a ] court of competent jurisdiction has concurrent jurisdiction with the Loft Board to hear issues with respect to the Loft Law Street Realty L . P . . . . I / ) ; see also L i t t l e West 12th v I n c o n i g l i o s , 19 Misc 3d 508 (Civ Ct, NY County 2 0 0 8 ) , a f f d 23 Misc 3 6 2 8 (App Term, 1st Dept 2009). Indeed, it is a general r u l e that "[ulnless the Legislature has expressed an explicit intention to vest exclusive original jurisdiction in the administrative agency, the court will be held to have concurrent jurisdiction." 1 6 0 AD2d 537, 537 (1st Dept 1990). County Dollar Corp. v Douglas, Therefore, this c o u r t is not estopped from determining the issues involved herein. Regardless, the matter should be heard, in the first instance, by the Loft Board. The issue is one of primary jurisdiction. "The doctrine of primary jurisdiction is intended to coordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statutes with which both are concerned 9 ... [* 11] [internal quotation m a r k s and citation omitted]. Wong v Gouverneur G a r d e n s H o u s i n g C o r p ; , 308 AD2d 3 0 1 , 303 (1st Dept 2003). [Wlhile concurrent jurisdiction does exist, where there is an administrative agency which has the necessary expertise to dispose of an issue, in the exercise of discretion, resort to a judicial tribunal should be withheld pending resolution of the administrative proceeding. I I d . , quoting D a v i s v Waterside Housing C o . , 2 7 4 A D 2 d 318, 318-319 (1st Dept 2000). The doctrine \\\comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body ... I If * Matter of Neumann v Wyandanch Union Free School D i s t r i c t , 8 4 AD3d 8 1 6 , 818 ( 2 d Dept 2011), quoting Staatsburg Water Co. v Staatsburg F i r e D i s t r i c t , 72 N Y 2 d 147, 1 5 6 (1988). The Loft Board is such an administrative body. In fact, the Appellate Division, First Department, has expressly stated that the fair market value of improvements is a question within the peculiar competence of the Loft Board. Matter of Perlrose Realty C o . v New York C i t y L o f t B o a r d , 1 4 5 A D 2 d 1 5 9 , 163 (1st Dept 1 9 8 9 ) , a f f d 7 4 NY2d 7 8 3 ( 1 9 8 9 ) ; see also Matter of Jo-Fra P r o p e r t i e s , Inc., 2 7 AD3d 298, 299 (1st Dept 2006) ( [a]ssuming judicial jurisdiction concurrent w i t h the L o f t Board, resort to the c o u r t s should be withheld in deference to the L o f t Board s expertise ) . 10 [* 12] As the Loft Board has special knowledge as to the administration of its regulations concerning valuation of fixtures, it should be the first forum to review such questions as a r e raised herein. The matter should be directed to the expertise of the Loft Board. Further, Justice Goodman clearly remanded the matter to the Loft Board, and no court ever reversed that order. The Estate errs in bringing this action when it h a s failed to comply with Justice Goodman's order, and has yet to approach the Loft Board with the valuation request. For this reason alone, the complaint should be dismissed. The Estate's response is to.refer the court to the Loft Board regulations concerning the filing of t h e Disclosure Form (found in 29 RCNY 2-07 et s e q . ) , and the events surrounding that filing. The Estate argues that, pursuant to 29 RCNY 2-07 (f) ( 2 ) , the Disclosure Form it served on 595 Broadway acted as "an offer from the prospective tenant to purchase the fixtures and improvements of Minda Bikman f o r $46,500." Bikman Aff., a t 12. According to the Estate, section 2-09 (f) (3) gives the owner receiving the Disclosure Fprm 10 days to request additional information, but that the request must contain an affirmation that the loft is currently registered with the Loft Board, language not contained in 595 Broadway's response to the Disclosure Form. The Estate would have this court find 5 9 5 11 . -. .. . .- [* 13] I , Broadway s response insufficient to toll the time to accept, ,reject or challenge the fair market value or the suitability of the prospective tenant pursuant to 2-07 ( g ) . Id. at 13. The Estate cites to 29 RCNY 2-07 (f) ( 3 ) as requiring 595 Broadway to elaborate the grounds for its denial of the alleged offer contained in the Disclosure Form (Bikman Aff, at 14), which it did n o t do. The Estate refers to 29 RCNY 2-07 (9) ( i i i )as requiring a n application and payment fee of $800 f o r an appraiser to value the f i x t u r e s , which again, 595 Broadway did not do.5 As a result, the Estate maintains that 595 Broadway can no longer challenge the valuation of the fixtures, and the L o f t Board need not be approached. Charla Bikman came to 595 Broadway s offices on August 4, 2011, expecting to receive either the $46,500, or the k e y s to the premises. She was>turned away. The Estate has previously, and clearly, been directed by Justice Goodman to approach the Loft Board with the question of valuation. Justice Goodman was, in effect, affirmed t w i c e . This c o u r t finds that the Estate cannot circumvent this order by the mere service of the Disclosure Form. Any question as to the propriety of the Disclosure Form, or 595 Broadway s response , t o it, should be brought before the L o f t Board to determine whether the matter of the valuation of the fixtures is affected by these The c o u r t does not find that requirement within section 207 ( 9 ) (iii). 12 [* 14] events. It addition, whatever the merits of the Estate's claim, based on a technical reading of Multiple Dwelling Law 5 286 ( 6 ) , that it may compel the purchase of the 'fixtures from the "incoming tenant," this claim is matter that should be addressed by the Loft Board. SO, t o o , should the question of whether the apartment is still deregulatated. In Justice Goodman's decision, she set forth, in the decretal language, that "pending the sale of the fixtures and improvements, the rent for the third floor frpnt unit in 595 Broadway remains regulated pursuant t o Article 7-C of the Multiple Dwelling Law." Reply, Ex. A , at 5 . The issue of whether the apartment is to be deregulated does not directly impact t h e Estate, as it is not a tenant in 595 Broadway's building, and, in any event, the matter should be addressed, if at all, by the L o f t Board. Further, whether 595 Broadway has been "unjustly enriched" by the deregulation of the loft, as the Estate claims (Bikman Aff., at 16), is not relevant here. Lastly, whether the value of the fixtures has been affected by depreciation, as 595 Broadway claims, is a matter to take up with the L o f t Board. 111. Conclusion This court concludes that this action should be dismissed, in deference to the jurisdiction of the Loft Board to .determine 13 [* 15] t h e v a l u a t i o n o f t h e f i x t u r e s , as o r d e r e d by J u s t i c e Goodman. F u r t h e r , t h e E s t a t e c a n n o t bring a cause o f a c t i o n f o r i n t e r f e r e n c e w i t h c o n t r a c t , there b e i n g n o c o n t r a c t which was interfered with. Accordingly, it is ORDERED t h a t t h e comp,aint 1 s dismissed, w i t h cl sts and d i s b u r s e m e n t s t o 595 Broadway A s s o c i a t e s , a s t a x e d by t h e C l e r k of t h e Court upon p r e s e n t a t i o n o f an a p p r o p r i a t e b i l l of c o s t s ; and i t i s f u r t h e r ORDERED t h a t t h e C l e r k i s d i r e c t e d t o e n t e r judgment accordingly. FILED: OY. Dated: J u l y , 2012 ENTER : 14
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