Bedford Gardens Co. v Berkowitz
2003 NY Slip Op 51299(U)
Decided on July 29, 2003
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Appellate Term, Second Department


[*1]
This opinion is uncorrected and will not be published in the Official Reports.

Digest-Index Classification:
Administrative Law—Collateral Estoppel

Decided on July 29, 2003
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2002-373 K C

BEDFORD GARDENS COMPANY, Appellant -Respondent,

against

SOLOMON BERKOWITZ and EDITH BERKOWITZ, Respondents-Appellants.


[*2]Appeal by landlord from so much of an order of the Civil Court, Kings County (R. Birnbaum, J.), entered May 7, 2002, as denied its motion for summary judgment and granted tenants' application for a "trial de novo of all the issues." Cross appeal by tenants, as limited by their brief, from so much of said order as denied their cross motion seeking to dismiss the petition, or in the alternative, for a traverse hearing and discovery, and granted landlord's motion to strike their second affirmative defense.


Order unanimously modified by providing that landlord's motion for summary judgment is granted and tenants' cross motion is denied in its entirety; as so modified, affirmed without costs.

The determination of the Department of Housing Preservation and Development (DHPD), after an administrative hearing (Rules of City of NY DHPD [28 RCNY] § 3-18 [a]), that tenants violated their section 8 lease by carrying out substantial and unauthorized renovations, may not be collaterally attacked in a subsequent summary proceeding (Lindsay Park Hous. Corp. v Grant, 190 Misc 3d 777 [App Term, 2d & 11th Jud Dists]; Yorkville Towers Assoc. v Mourino, NYLJ, June 9, 1997 [App Term, 1st Dept]) notwithstanding that said determination was "taken by default" (Robbins v Growney, 229 AD2d 356, 357). The hearing procedures afforded tenants a full and fair opportunity to litigate the claim (Rules of City of NY DHPD [28 RCNY] § 3-18 [b]; Ryan v New York Tel. Co., 62 NY2d 494) which they forfeited by failing to appear at the hearing, and to respond to the hearing officer's request for additional information after the hearing officer had, in essence, deemed tenants' post-hearing letter a motion to reopen the [*3]hearing and granted said motion (e.g. Matter of IG Second Generation Partners v New York State Div. of Hous. & Community Renewal, 294 AD2d 300, 302).

We have considered tenants' remaining contentions and find them without merit (Rules of City of NY DHPD [28 RCNY] § 3-18 [b]; Lara v 1010 E: Tremont Realty Corp., 205 AD2d 468; 433 W. Assocs. v Murdock, 276 AD2d 360) or academic given the determination herein.
Decision Date: July 29, 2003