Supreme Court, New York County, September 12, 2019

Crowell & Moring LLP, New York City (Jared Levine, Juan A. Arteaga, Gary A. Stahl and Randa Adra of counsel), and Northern Manhattan Improvement Corp. Legal Services, New York City (Matthew J. Chachere and Andrew Goodman of counsel), for plaintiffs.

Rosenberg & Estis, P.C., New York City (Howard Kingsley of counsel), for defendants.

Plaintiffs move pursuant to CPLR 2221 (e) for renewal of their opposition to defendants' motion to dismiss their action for rent overcharges, for vacatur of the October 1, 2018 judgment, and to restore the action to the calendar for a conference to address the completion of discovery. Defendants oppose.

By decision and order dated September 13, 2018, defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (2) and (7) was granted on the ground, inter alia, that, notwithstanding the court's concurrent jurisdiction with the New York State Division of Housing and Community Renewal (DHCR) on issues relating to rent regulation, "the issues raised in this proceeding are particularly suited to resolution by DHCR, which has expertise in these matters." (2018 NY Slip Op 33589[U] [2018]; NY St Cts Elec Filing [NYSCEF] Doc No. 173.) Thereafter, on October 4, 2018, plaintiffs filed a notice of appeal of the September 13 decision which presently pends; they did not file their claims with the DHCR. Then, effective June 11, 2019, the New York State Legislature passed the Housing Stability and Tenant Protection Act of 2019 (L 2019, ch 36 [HSTPA or the act]; NYSCEF Doc No. 174).

Plaintiffs rely on provisions of the act that they allege (1) afford tenants the choice of forum for rent overcharge claims (HSTPA, L 2019, ch 36, § 1, part F, § 3, amending Emergency Tenant Protection Act [ETPA] of 1974 § 12 [b] [McKinney's Uncons Laws of NY § 8632 (b) (L 1974, ch 576, sec 4, § 12)]; NYSCEF Doc No. 174 at 11), and (2) make the act immediately{**65 Misc 3d at 761} effective and applicable to any pending claims (HSTPA, L 2019, ch 36, § 1, part F, § 7; NYSCEF Doc No. 174 at 15). They thus maintain that as their claims pend on appeal, the act applies to their action and their claims must be heard in this court, their chosen forum.

Defendants argue that given the dismissal of plaintiffs' action, the matter is "closed" and over unless and until it is "revived" by the Appellate Division. Thus, plaintiffs' motion to renew is alleged to be untimely. They also deny that the action is pending for purposes of the act as it was dismissed nine months ago and, having filed no rent overcharge claims with the DHCR, plaintiffs' claims do not pend there either. They also observe that their motion for attorney fees was denied on the ground that the action no longer pended here, after judgment was entered on the dismissal. Defendants moreover claim that the act does not change the prior determination as tenants have always had the choice of forum.

In their reply, submitted on the return date of the motion, plaintiffs deny that the action is over, as their claims pend at the Appellate Division and no final judgment has yet been rendered. They distinguish defendants' motion for attorney fees from a motion to renew.

Plaintiffs argue that the principles of statutory construction require that the phrase "subject to the tenant's choice of forum" be construed according to its plain meaning, namely, that overcharge claims are to be heard exclusively in the tenant's chosen forum, and that the act "eliminates the doctrine of 'primary jurisdiction' in rent overcharge cases."

Absent any claim of a need to address the arguments advanced by plaintiffs in their reply memorandum, defendants do not demonstrate any prejudice that may result from consideration of plaintiffs' reply. Thus, as a matter of discretion, the reply is considered.

A motion to renew pursuant to CPLR 2221 (e) may be granted where the movant demonstrates that "there has been a change in the law that would change the prior determination" (CPLR 2221 [e] [2]).{**65 Misc 3d at 762}

A. Does plaintiffs' case pend for purposes of determining if the motion to renew is timely?

A motion to renew based on a change in the law is untimely if advanced "after the case has gone to final judgment, with the appeal time having expired." (David D. Siegel & Patrick M. Connors, NY Prac § 254 at 496 [6th ed 2018].)

As it is undisputed that plaintiffs' time to appeal the September 13 decision has not expired, their motion to renew is timely. The timeliness of defendants' motion for attorney fees is irrelevant.

B. Does plaintiffs' case pend for purposes of determining whether plaintiffs are entitled to protection under the act?

Pursuant to part F, § 7, the act "shall take effect immediately and shall apply to any claims pending or filed on and after such date."

In Matter of Pechock v New York State Div. of Hous. & Community Renewal, the Court construed a provision in the then newly enacted Rent Regulation Reform Act of 1997, which applied to " 'any action or proceeding pending in any court' at the time of its enactment," and found that "pending in any court" included a case then on appeal (253 AD2d 655, 655 [1st Dept 1998] [internal quotation marks omitted]). As the statute in issue there specifically provided that it applied to any action pending "in any court," whereas here the act applies solely to any pending claims, Matter of Pechock is not on point.

As plaintiffs' claims remain unresolved until the appeal of the September 13 decision is decided, they are pending.

C. Does the act prohibit the dismissal of an action in favor of rent overcharge claims being brought before DHCR?

Pursuant to HSTPA, part F, § 1 (amending ETPA of 1974 § 12 [a] [1] [McKinney's Uncons Laws of NY § 8632 (f)]), "[t]he courts and [DHCR] shall have concurrent jurisdiction [*2]subject to the tenant's choice of forum."

This provision not only overrules case law holding that DHCR has primary jurisdiction over rent overcharge claims (see e.g. Olsen v Stellar W. 110, LLC, 96 AD3d 440, 441-442 [1st Dept 2012]), but it affords tenants their choice of forum. Consequently, as plaintiffs have chosen to have their rent overcharge claims brought in this court, their action may not be dismissed in favor of the claims being heard by DHCR.{**65 Misc 3d at 763}

As plaintiffs sufficiently demonstrate that part F, § 1 of the act (amending ETPA of 1974 § 12 [a] [1] [McKinney's Uncons Laws of NY § 8632 (f)]) effects "a change in the law that would change the prior determination," it is hereby ordered that plaintiffs' motion for renewal is granted; it is further ordered that defendants' June 27, 2017 motion to dismiss plaintiffs' rent overcharge claims is denied; it is further ordered that the October 1, 2018 judgment in this action is vacated; it is further ordered that the case is restored to the calendar for a scheduling conference to coordinate the completion of discovery.