Appeal from an order of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered June 24, 2005. The order granted tenant's motion for reargument and held that tenant was entitled to a trial de novo of landlord's grievance proceeding determination that the subject tenancy be terminated.

Order affirmed without costs.

Landlord, The Municipal Housing Authority for the City of Yonkers (Housing Authority), commenced this holdover proceeding against tenant, alleging that the lease was terminated on September 7, 2004 pursuant to a 30-day notice of lease termination. Prior to landlord's service of the notice, a grievance proceeding was conducted by the
Housing Authority at tenant's request, following which it was determined that tenant breached the lease by erecting a satellite dish on the premises and that the lease be terminated. On the return date of the instant petition, the lower court ruled that the administrative determination was binding upon the court and that it had no authority to consider de novo the Housing Authority's termination of the lease. Thereafter, tenant moved for reargument, asserting that she was entitled to de novo review. The court granted reargument and, upon reargument, granted tenant's motion. The instant appeal by landlord ensued. In entertaining the appeal, we note that an order determining the scope of the issues to be tried is appealable (see Parker v Mobil Oil Corp., 16 AD3d 648 [2005]). [*2]

As a general rule, the doctrines of res judicata and collateral estoppel are applicable to quasi-judicial determinations of administrative agencies (see Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]). However, in New York City Hous. Auth. v Simmons (148 Misc 2d 709 [App Term, 2d & 11th Jud Dists 1990]), the court held that an administrative determination adverse to a grievant was not intended to bar the grievant from asserting the same claim that was raised at the administrative hearing in a subsequent holdover proceeding, where the grievance procedure rules in effect at that time provided, inter alia, that a tenant's election to use the grievance procedure would not constitute a waiver of the tenant's rights to a judicial trial.

In this case, section 4 of the Housing Authority's grievance procedures provides that a tenant's failure to request a grievance hearing does not affect his right to contest the Housing Authority's determination in "a court hearing." Section 10 provides that a "decision by the Hearing Officer...which denies the relief requested by the complainant shall not constitute a waiver of, nor affect in any way, the rights of the complainant to a trial de novo or judicial review in any judicial proceedings, which may thereafter be brought in the matter." Landlord contends that the effect of section 10, as well as that of 24 CFR 966.57 (c) - - the language of which is similar, but differs in that it provides that the administrative decision "does not constitute a waiver of . . . any rights the complainant may have to a trial de novo" (emphasis added) (see generally New York City Hous. Auth., Nostrand Houses v Margiato, 4 Misc 3d 135[A], 2004 NY Slip Op 50781[U] [App Term, 2d & 11th Jud Dists] [wherein the effect of 24 CFR 966.57 (c) was discussed but not resolved]) - - is not to create any rights to a trial de novo of the issue of whether the tenancy was properly terminated but merely to preserve the tenant's right to judicial review of the administrative determination in a CPLR article 78 proceeding. Landlord argues that the language to the effect that the administrative decision is not a waiver of the right to a trial de novo applies only in states which allow such a right, and that New York does not so allow. Tenant responds that both provisions affirmatively allow for a trial de novo.

In our view, the language of section 10 of the Housing Authority's grievance procedures, which omits the words "any" and "may have" found in 24 CFR 966.57 (c), affirmatively suggests that the tenant has a right to a trial de novo. To the extent that the language of section 10 may be ambiguous, it must be construed against the Housing Authority.

Due process requires that an administrative regulation contain a "reasonable degree of certainty so that individuals of ordinary intelligence are not forced to guess at the meaning of a statutory term" (Matter of Food Parade, Inc. v Office of Consumer Affairs of County of Nassau, 19 AD3d 593, 595 [2005] [internal quotation marks and citations omitted]). At the very least, the Housing Authority's grievance procedure provision relied upon by tenant, which applies only to the Yonkers Housing Authority's tenants and not to tenants in other states, does not provide an individual of ordinary intelligence with a degree of certainty as to whether he or she is entitled to a trial de novo upon the election to undergo a grievance proceeding. Thus, the provision must be construed against the Housing Authority so as to avoid the unreasonable result of denying due process to a tenant who opts, in reliance on the language of section 10, to avail himself of the grievance procedure instead of exercising his right to a court hearing, as granted in section 4. Accordingly, we find that tenant is entitled to a trial de
novo to resolve the issue of whether landlord's termination of the lease was proper (see New [*3]York City Hous. Auth. v Simmons, 148 Misc 2d 709, supra).

In view of the foregoing, we need not decide whether 24 CFR 966.57 (c) creates a right to a trial de novo since we find that such a right was granted by the Housing Authority in its grievance procedures (see generally New York City Hous. Auth., Nostrand Houses v Margiato, 4 Misc 3d 135[A], 2004 NY Slip Op 50781[U], supra).

Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.
Decision Date: November 15, 2006