Griffin Units, LLC v Walker

[*1] Griffin Units, LLC v Walker 2007 NY Slip Op 52053(U) [17 Misc 3d 1118(A)] Decided on October 23, 2007 Civil Court Of The City Of New York, Kings County Heymann, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2007
Civil Court of the City of New York, Kings County

Griffin Units, LLC, Petitioner,

against

Keir Walker, Respondent.



97012/06



The petitioner was represented by:

Tenenbaum & Berger LLP

David Napitupulu, Esq., Of Counsel

26 Court Street, Penthouse

Brooklyn, New York 11242

718-596-3800

The respondent was represented by:

Robert L. Sims Jr., Esq.

116 West 111th Street

New York, New York 10026

212-864-1600

George M. Heymann, J.

In this licensee holdover proceeding the petitioner moves for summary judgment granting a final judgment of possession, or, in the alternative, precluding the respondent from presenting previously demanded documentary and testimonial evidence at trial which were not produced by the respondent.

The respondent has cross-moved for dismissal of the petition, or, in the alternative, denial of the petitioner's motion in its entirety.

Cynthia Reed, the former tenant of record for the premises located at 101 Lafayette Avenue, Apt. #

4D, Brooklyn, New York 11217, passed away on April 25, 2006.

Keir Walker, the respondent herein, states that he is the oldest son of the deceased, also known as Cynthia Walker, and that he has resided with his mother in the subject premises for approximately twenty six years and did so for the three years immediately prior to her death.

After being denied a lease by the petitioner / landlord, the respondent filed a complaint against the landlord with the New York State Division of Housing and Community Renewal [*2]("DHCR") on or about August 7, 2006, claiming succession rights.

On December 20, 2006, the DHCR Office of Rent Administration denied the relief requested and terminated the proceeding.[FN1]

The respondent's attorney avers that the petitioner's argument in this matter, that the DHCR's determination should be given res judicata and collateral estoppel effect, lacks merit. The respondent contends that because the doctrine of res judicata operates to preclude issues actually litigated and resolved, its effect can only be given after a final judgment on the merits. Similarly, that collateral estoppel requires that the issue was actually litigated. The respondent submits that the statement "To date, the complainant failed to respond" in the Rent Administrator's order makes it clear that the issue of the respondent's succession rights was never fully litigated. The respondent also states that the petitioner waived its right to rely on the DHCR determination because it commenced this proceeding while the DHCR complaint was pending.

In addition, the respondent alleges that the petitioner accepted rent after the commencement of this proceeding thereby vitiating the petition and notice of petition. Finally, the respondent claims that the reason he failed to appear for scheduled depositions was because he was "advised" by the pro-se attorney at the courthouse not to attend since he did not have an attorney and that the depositions were not court ordered.

The thrust of the respondent's argument is that "res judicata" and "collateral esptoppel" cannot be applied in this case. The respondent takes the position that the issue of his "succession" to the subject premises was never litigation and that the determination reached in the proceeding before DHCR was made on default. [*3]

Counsel for the respondent relies on the Court of Appeals holding in Kaufman v.Eli Lilly and Co., 65 NY2d 449, 455-456, 492 NYS2d 584, 588, which provides that the doctrine of collateral estoppel requires two elements that must be satisfied before the doctrine can be invoked:

First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. ***** The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.

Counsel further emphasizes that, as stated in Kaufman v.Eli Lilly and Co., supra , at 456-457, 589, and Dempster v. Overview Equities Inc., 4AD3d 495, 773 NYS2d 71,75 (AD 2nd Dept.) citing

Kaufman v.Eli Lilly and Co., supra , there must be an identity of issues, and that the matter must be "actually litigated and determined." As such, a matter is not actually litigated if there has been a default, as suggested here.

While the Court does not disagree with the legal propositions posited by the respondent's counsel, there are several factors that differentiate this matter from the principles enunciated.

In the case at bar, it was the respondent himself who filed a complaint with the DHCR seeking a declaration of his succession rights, as opposed to being a respondent in a proceeding and raising the issue as an affirmative defense. Therefore, the respondent cannot now, in this summary proceeding, argue that he was not provided his "due process" opportunity to be heard. He commenced the administrative hearing prior to any action taken by the landlord either at DHCR or in the Housing Court. The respondent chose his forum and is now constrained by the adverse administrative determination. Having initiated the process, to which the petitioner responded upon receiving a copy of the complaint, and a copy of said response being forwarded to the respondent for a reply, it was incumbent upon the respondent / occupant, in whose domain the matter then rested, to rebut the landlord's position. His failure to make any rejoinder thus limited the evidence to be considered by the rent administrator. The respondent's neglect in submitting additional documentation regarding his claims of succession rights, as requested, cannot be attributed to anyone but himself. Any argument to the contrary belies the fact that he was accorded an opportunity to be heard. Moreover, the rent administer's decision clearly states that the issue determined was that of the respondent's succession rights to the subject premises. Thus, there can be no question that the nature of the issues before both the DHCR and this Court are "identical".

The respondent's reference to Chinatown Apts. v. Chun Fong Lee, 168 Misc 2d 990, 641 NYS2d 483, which held that the tenant was not collaterally estopped from litigating the question of his succession rights in the Housing Court notwithstanding a prior adverse determination by HPD, is inapplicable to the facts of this case. In that case, it was the petitioner housing company [*4]that made the initial determination against the tenant. As the court there stated:

The housing company, which makes the initial determination, is not, like HPD, an impartial, disinterested agency, but rather a party who is asked to make a determination which by its nature requires it to consider the validity and accuracy of its records and documents, and/or the credibility of its employees. It appears to this court that this raises fundamental questions regarding the fairness and integrity of the proceedure.

As can be seen, while criticizing the process whereby the petitioner made the initial determination, the court in Chinatown Apts. v. Chun Fong Lee, id., acknowledges that HPD, like DHCR here, is "an impartial, disinterested agency" without an agenda or predisposition as to the complaints filed.

In the recent case of Koros v. Salas, 2007 NY SlipOp 51149 (U), this Court held that the landlord's failure to respond to a DHCR complaint which resulted in a favorable determination for the tenant remained "in full force and effect, and this Court does not have the authority or jurisdiction to amend, modify, void or nullify it."

The Appellate Term, Second Department, has consistently held that determinations made by an agency that has jurisdiction to determine a remaining family member's claim of succession rights cannot be collaterally challenged in a subsequent summary proceeding. See, Lindsay Park Housing Corp. v. Grant, 190 Misc 2d 777, Brighton House Inc. v. Novick, 2003 NY SlipOp 51201(U), Bedford Gardens v. Berkowitz, 2003 NY SlipOp 51299(U). See also, Bedford Gardens v. Jacobowitz, 29 AD3d 510 (AD 2nd Dept., 2006), Chinatown Apts. Inc. v. Cheung, 16 Misc 3d 127(A), 2007 NY SlipOp 51248(U) (AT 1st Dept.).

Although the above cited cases involved Mitchell-Lama housing in which HPD has exclusive jurisdiction to determine succession claims of remaining family members, that does not require a different result here, where the subject premises is rent stabilized and the DHCR and the Housing Court have concurrent jurisdiction to determine the issue.

In the instant proceeding, as noted above, it was the occupant / licensee who chose the initial forum for a determination of his status vis a vis the subject premises and who now seeks a second bite of the apple because his first bite was unsatisfactory. Unfortunately, there are no "do-overs" in this case. The Court does not accept the respondent's argument that the petitioner was precluded from commencing a summary proceeding during the pendency of the DHCR proceeding. There was no bar to both matters going forward at the same time as the petitioner and respondent in each respective matter were different. In the DHCR case, the matter was initiated by the occupant (respondent herein) who was seeking a declaration that he could become the successor tenant of record. In this summary proceeding, the petitioner / landlord is seeking to evict the occupant alleging that he was a licensee whose license expired upon the death of the tenant of record.

Had the DHCR reached a different conclusion (i.e.: that the occupant was entitled to succession rights) this Court's decision would remain the same. In that scenario, as in Koros v. Salas, supra , the petitioner / landlord would be equally bound by the decision and would be precluded from re-litigating it here.

The respondent, for unexplained reasons, having commenced the DHCR complaint, never responded to DHCR's request for additional information on said complaint and did not appeal the [*5]adverse determination. At this juncture, the respondent's time to appeal has long since expired. Petitions for Administrative Review (PAR) must be made within 35 days after an Order's issue date. The respondent's only recourse in the courts, if he had pursued a PAR and lost, would be to timely commence an Article 78 proceeding in the Supreme Court. Since the respondent did neither, the original determination remains in full force and effect and cannot be impeached in this summary proceeding.

The Court finds no merit to the respondent's remaining contentions. Any argument that the petitioner accepted rent and vitiated this proceeding have been waived by the respondent's numerous appearances over the course of a year and the agreements for paying ongoing use and occupancy (U & O) and to give testimony at scheduled depositions.

Regarding said depositions, the respondent, represented by counsel, agreed to be deposed on April 24, 2007 and subsequent adjourned dates. His "excuse" for failing to appear on any of the scheduled dates on the ground that he was "advised" not to participate by the court's pro-se attorney because he was no longer represented by counsel and the depositions were not court ordered is disingenuous and unacceptable.

Accordingly, based on the foregoing, the petitioner's motion for summary judgment is granted. The petitioner is awarded a final judgment of possession, warrant to issue forthwith. Execution of the warrant is stayed through November 30, 2007 for the respondent to vacate the subject premises, provided the respondent is current with all U & O and pays November's U & O no later than November 9, 2007.

The second branch of the petitioner's motion seeking, in the alternative, preclusion of testimony and other evidence is denied as moot.

The respondent's cross-motion is denied in its entirety.

This constitutes the Decision and Order of the Court.

Dated: October 23, 2007______________________________George M. Heymann, JHC Footnotes

Footnote 1: The DHCR Order reads as follows:

After consideration of all the evidence in the record, the Rent Administrator finds that:

On August 7, 2006, the complainant, Keir Walker, filed a lease violation complaint, alleging that after the death of his mother, Cynthia Walker, on April 25, 2006, the owner refused to recognize his succession rights to the subject apartment.

On September 8, 2006, a copy of the tenant's complaint was served on the owner. In response, the owner stated that the complainant has not submitted any proof to support his claim of succession rights to the subject apartment.

On November 9, 2006, a copy of the owner's response was forwarded to the tenant and the complainant was requested to submit additional information and documentation to establish succession rights to the subject apartment. To date, the complainant failed to respond. Based on the above, the Rent Administrator determines that the complainant, Keir Walker, has not been able to provide sufficient proof to establish his succession rights for the subject apartment in accordance with the provisions of Section 2523.5(b)(1) of the Rent Stabilization Code.

Therefore, it is ordered that the relief requested is denied, and / or this proceeding is terminated.