Mitchell Berman v Waverly Associates

Berman v Waverly Assoc. 2005 NY Slip Op 04473 [19 AD3d 136] June 2, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 24, 2005

Mitchell Berman, Respondent,
v
Waverly Associates et al., Appellants.

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Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered February 8, 2005, which denied as moot both plaintiff's motion for summary judgment in lieu of complaint and defendants' cross motion to stay enforcement of an order of the Division of Housing and Community Renewal (DHCR), but granted attorneys' fees to plaintiff in connection with the proceeding, unanimously modified, on the law, the award of attorneys' fees denied, and otherwise affirmed, without costs.

Plaintiff improperly resorted to the procedure under CPLR 3213 to "enforce" an order of DHCR, and thus, an award of attorneys' fees was inappropriate. The administrative order at issue was not an instrument for the payment of money only. A clearly delineated procedure existed (in DHCR Fact Sheet No. 16, Collecting Overcharges in Rent Stabilized Apartments in New York City) for entering a "final" order for rent overcharges as a judgment at the conclusion of judicial proceedings (see Rent Stabilization Code [9 NYCRR] § 2526.1 [e]). Concur—Saxe, J.P., Sullivan, Nardelli and Williams, JJ.