Landlord appeals from an order of the Civil Court, New York County (Jean T. Schneider, J.), dated October 31, 2003, which granted tenant's motion for summary judgment dismissing the petition in a holdover summary proceeding.

PER CURIAM:

Order (Jean T. Schneider, J.), dated October 31, 2003, reversed, with $10 costs, motion denied and petition reinstated.

The dismissal of the prior declaratory judgment action instituted by landlord against this tenant (Hudsoncliff Building Co. v Chandler, 279 AD2d 423 [2001]) did not preclude the within summary holdover proceeding under principles of res judicata or collateral estoppel. Lacking was the requisite identity of issue between the two proceedings, particularly given the intervening altered building application filed by landlord (see Matter of Morehouse v Town of Horicon Planning Bd., 85 AD2d 769 [1981]). Nor is summary judgment dismissal of the holdover proceeding warranted on the merits, since tenant, as movant, failed to establish prima facie that his occupancy of the basement apartment was not illegal or did not subject landlord to civil or criminal penalties (see Rent Stabilization Code [9 NYCRR] § 2524.3[c]). A trial is required to explore, inter alia, whether the plot line, window and other objections noted by the Department of Buildings in its September 29, 2001 order denying landlord's altered building application are capable of cure (cf. Dinicu v Groff Studios Corp., 257 AD2d 218, 223 [1999]).

This constitutes the decision and order of the court.
I concur
Decision Date: July 20, 2006