Gerard v Clermont York Assoc., LLC

Gerard v Clermont York Assoc., LLC 2011 NY Slip Op 01059 Decided on February 15, 2011 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 15, 2011
Gonzalez, P.J., Friedman, Catterson, Renwick, Abdus-Salaam, JJ.
4266 101150/10

[*1]Paula Gerard, et al., Plaintiffs-Appellants,

v

Clermont York Associates, LLC, Defendant-Respondent.




Himmelstein, McConnell, Gribben, Donoghue & Joseph, New
York (William J. Gribben of counsel), for appellants.
Horing Welikson & Rosen, P.C., Williston Park (Niles C.
Welikson of counsel), for respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 5, 2010, which, in this putative class action commenced by plaintiffs on behalf of themselves and others similarly situated alleging wrongful deregulation of certain rent-stabilized apartments by defendant owner and its predecessors in interest who have been receiving J-51 tax benefits since July 1997, granted defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.

The court abused its discretion in dismissing the complaint under the doctrine of primary jurisdiction. This action presents legal issues left open after the Court of Appeals' decision in Roberts v Tishman Speyer Props, L.P. (13 NY3d 270 [2009]), including whether that decision is to be applied retroactively or prospectively. It is the courts, not the Division of Housing and Community Renewal, that should address these issues in the first instance.

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

ENTERED: FEBRUARY 15, 2011

CLERK