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Civil Court, City of New York.

HILLSIDE PLACE, LLC, Petitioner, v. Younas SHAHID, John Doe, Jane Doe, Respondents.

L & T 53387/2011

Decided: May 17, 2019

Curtis Harger, Esq., 166-07 Hillside Avenue, Suite #1, Jamaica, NY 11432, Attorney for Petitioner Thomas J. Hillgardner, Esq., 82-63 170th Street, Jamaica, NY 11432, Attorney for Respondent

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent's motion to restore, to strike the Petition, and for an inquest, and Petitioner's cross-motion for an order marking the case off-calendar pending the issuance of a determination by Division of Housing and Community Renewal (“DHCR”), and a request that the Court seek an expedited decision from DHCR, or in the alternative, for an order permitting Petitioner to supplement its response to Respondent's discovery demands:

Papers Numbered

Notice of Motion and Affirmation & Exhibits annexed thereto 1

Cross-Motion & Affirmation and Affidavit in Support & Opposition & Exhibits annexed thereto 2

Reply Affirmation 3

Other (Court file) 4

Upon the foregoing cited papers, the Court's Decision/Order on Respondent's motion and Petitioner's cross-motion is as follows:

“It's déjà vu all over again.” -Yogi Berra  1


Petitioner commenced this nonpayment proceeding in February 2011, seeking outstanding rents from Respondent for the subject premises located at 87-50 167th Street, No. 6F, Jamaica, New York 11432. The Petition alleges that the subject premises are subject to rent stabilization. Respondent interposed an Answer, which included counterclaims for rent overcharge. Thereafter, both parties moved for summary judgment before Judge Maria Ressos. In a Decision/Order dated October 17, 2011, Judge Ressos denied both summary judgment motions but granted Petitioner leave to amend the Petition to include increases permitted under Rent Guidelines Board (“RGB”) Orders #40 and #41, which were upheld (recently, at that time) by the Court of Appeals in Casado v. Markus, 16 NY3d 329 (2011). Judge Ressos also granted respondent leave to conduct discovery on his overcharge counterclaim. The case was marked off-calendar pending completion of discovery.

Thereafter, in mid-2014, Respondent moved to stay the proceeding and for an order striking the Petition based on Petitioner's alleged failure to comply with discovery requests.2 Petitioner cross-moved to dismiss the proceeding and Respondent's counterclaims.3 Judge Clifton A. Nembhard, in a Decision/Order dated August 28, 2014, denied Respondent's motion and granted Petitioner's cross-motion on the basis that Respondent had not offered a reasonable excuse for restoring the proceeding well over a year after it had been marked off the Court's calendar (citing 22 NYCRR § 208.14). Respondent then appealed the dismissal of the proceeding and his counterclaims to the Appellate Term for the 2nd, 11th & 13th Judicial Districts. On March 29, 2017, the Appellate Term reversed Judge Nembhard's decision to the extent of denying Petitioner's cross-motion to dismiss, finding that 22 NYCRR § 208.14 makes no provision for dismissal for failure to prosecute, and remitted the proceeding to Housing Court for a determination on Respondent's motion to strike the Petition based on alleged non-compliance with discovery. See Hillside Place, LLC v. Shahid, 55 Misc 3d 101, 49 N.Y.S.3d 607 (App. Term 2d, 11th & 13th Jud. Dists. 2017).

The proceeding was then restored back to the Court's calendar on June 2, 2017, and the parties stipulated that Petitioner would respond to Respondent's interrogatories and demand for discovery and inspection by July 21, 2017, or the Petition would be deemed stricken. On July 19, 2017, Petitioner served a response to Respondent's interrogatories and demand for discovery and inspection. The response alleges that most of the information sought in Respondent's interrogatories and the discovery demand was rendered moot by a July 13, 2017 Order and Opinion Denying Petition for Administrative Review (hereinafter “July 13, 2017 PAR Order”) by the DHCR Deputy Commissioner. The July 13, 2017 PAR Order affirmed an Order of the DHCR Rent Administrator on Petitioner's request for an Administrative Determination of the legal and preferential rents.4

Subsequently, in August 2017, Respondent filed an Article 78 proceeding seeking judicial review of the July 13, 2017 PAR order (Shahid v. DHCR, Index No. 8480/2017 (Sup. Ct. Queens County)). In that proceeding, on December 11, 2017, Justice Denis J. Butler granted DHCR's cross-motion for remittal to reconsider the calculation of Respondent's rent and review the 2008 lease renewal.5 Justice Butler's December 11, 2017 order, along with a subsequent order that he rendered denying Respondent's motion to supplement his Article 78 petition to seek judicial review of a separate DHCR opinion and order, were appealed to the Appellate Division, Second Department. Although a motion to dismiss the appeal by DHCR was denied on April 2, 2018, the record is unclear as to whether the appeal is still pending.

Notwithstanding the appeal, however, on January 29, 2018, DHCR advised counsel for Petitioner and Respondent that a new docket number was being assigned and that both parties were to make submissions to DHCR as to the propriety of the Rent Administrator's decision to increase the legal rent pursuant to a renewal lease for the term October 1, 2008 to September 30, 2009. Respondent filed a response arguing, inter alia, that DHCR should stay the matter pending the determination of the appeal of Justice Butler's order, or in the alternative, dismiss the matter on the basis of the Appellate Term's March 29, 2017 decision reversing Judge Nembhard and the reinstatement of Respondent's overcharge claims in this proceeding. Petitioner replied, arguing the Rent Administrator's order was correct and should be upheld. On April 17, 2018, the DHCR Deputy Commissioner denied Respondent's PAR and affirmed the Rent Administrator's order, finding that the rent adjustment pursuant to RGB Order #40 was proper since no appeal was ever taken from Judge Ressos' October 27, 2011 Decision/Order granting Petitioner's motion to amend the Petition to permit increases in accordance with RGB Orders #40 and #41.6 Confusingly, however, the Deputy Commissioner determined that his findings were “without prejudice to the tenant's right to raise his arguments on this, and other rent adjustments, before the Civil Court when ripe.”

Concurrently and immediately relevant to the motion and cross-motion at bar, Respondent moved (in January 2018) before Judge Nembhard for an order restoring the case to the calendar for an inquest based on Petitioner's alleged failure to comply with the June 2, 2017 discovery stipulation. Notably, Respondent's counsel states, in his affirmation in support of the immediate motion, that the 2018 motion sought the “identical relief” as Respondent is currently seeking. As is the case now, Petitioner cross-moved for an order marking the case off-calendar pending the issuance of a determination by DHCR (though on a separate matter) and requested that the Court seek an expedited decision from DHCR, or in the alternative, requested that it be permitted to supplement its response to Respondent's discovery demands. On May 8, 2018, Judge Nembhard rendered a Decision/Order denying Respondent's motion and granting Petitioner's cross-motion to the extent of marking the case off-calendar pending DHCR's reconsideration of the July 13, 2017 PAR Order.7 Also in May 2018, Judge Joel R. Kullas consolidated a new nonpayment proceeding between the same parties (Index No. L & T 51336/17) with the immediate proceeding.

Finally, on June 7, 2018, Respondent commenced another Article 78 proceeding, this one seeking to vacate the April 17, 2018 order by the DHCR Deputy Commissioner (Shahid v. DHCR, Index No. 4527/18 (Sup. Ct. Queens County). In a Short Form Order/Judgment recorded on January 23, 2019, Justice Ulysses B. Leverett remanded the matter back to DHCR for further proceedings, finding that the Deputy Commissioner erred insofar as he relied on Judge Ressos' October 17, 2011 Decision/Order as a final determination of any rent increases pursuant to RGB Orders #40 and/or #41. To the Court's knowledge, there has been no new determination by DHCR on remand.


As he did in January 2018, Respondent moves for an Order restoring the case to the calendar for an inquest on his counterclaim for rent overcharge on the ground that the Petition has been stricken by operation of law based on Petitioner's non-compliance with the June 2, 2017 stipulation regarding discovery responses to be produced by July 21, 2017. Respondent argues that although he made a prior motion seeking the identical relief, which was denied by Judge Nembhard on May 8, 2018, the intervening decision by Justice Leverett removed the need to defer any longer to DHCR.


Petitioner opposes Respondent's motion and cross-moves for relief that is substantially similar to the relief that was sought in the cross-motion filed before Judge Nembhard in 2018, namely an order marking the case off-calendar pending the issuance of a determination by DHCR and for the Court to seek an expedited decision from DHCR, or in the alternative, an order granting it permission to supplement its response to Respondent's discovery demands.


Respondent's Motion

As stated by the Court of Appeals in Martin v. Cohoes, 37 NY2d 162, 165 (1975), “[t]he doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned.” In a separate decision applying the “law of the case” doctrine, the Court of Appeals clarified that “[a]s distinguished from issue preclusion or claim preclusion ․ law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment.” People v. Evans, 94 NY2d 499, 502 (2000) (emphasis in original). See also Fishon v. Richmond Univ. Med. Ctr., 2019 NY Slip Op 02682 (2d Dep't 2019); In re Estate of Billings, 122 AD2d 941, 943 (2d Dep't 1986).

Respondent has already moved for the relief that he seeks by his current motion, and the relief was denied by Judge Nembhard in his May 8, 2018 Decision/Order. Judge Nembhard's ruling on Respondent's prior motion is the law of the case and precludes a ruling by a separate Housing Court judge on the same issues raised in the prior motion. See Martin v. Cohoes and People v. Evans, supra. To the extent that Respondent argues that Justice Leverett's decision in the latest Article 78 proceeding on January 23, 2019 permits a new assessment of his prior motion, the Court disagrees. Judge Nembhard specifically referenced “the fact that the DHCR, which is familiar [with] all the facts and circumstance[s] surrounding the underlying litigation, seeks to reevaluate its previous determination of respondent's rent” in denying Respondent's prior motion. In light of Judge Nembhard's assessment of DHCR's familiarity with the facts and circumstances of the underlying litigation, Justice Leverett's remand for further DHCR proceedings in regards to the assessment of Respondent's rent is not an “extraordinary circumstance” that would warrant ignoring the “law of the case” doctrine here. See In re Estate of Billings, 122 AD2d at 943.

Accordingly, Respondent's motion is denied, without prejudice to Respondent seeking any relief strictly in relation to Judge Nembhard's May 8, 2018 Decision/Order.

Petitioner's Cross-Motion

As Respondent's motion is denied, the Court denies Petitioner's cross-motion to mark the proceeding off-calendar as moot. The proceeding will be off-calendar unless or until any further motion is made to restore for appropriate relief by either party. However, the Court does not find that an off-calendar marking “pending the issuance of a new determination by DHCR” is warranted, since such a ruling would effectively grant Petitioner a stay pending an administrative determination by DHCR. Petitioner has not set forth an adequate basis for a stay pursuant to CPLR § 2201. Rather, Petitioner's attorney merely states that “[t]his Court should mark this nonpayment proceeding ‘off calendar’ pending the issuance of a new determination by DHCR of the petition for administrative review of the AD Order that was remanded to DHCR by the Leverett Order.” Accordingly, the request to mark the proceeding off-calendar pending a new determination by DHCR is denied. The Court also denies Petitioner's motion to supplement its discovery responses, without prejudice, as this relief was only sought in the alternative if Respondent's motion was granted. Since Respondent's motion is denied, the Court has no basis to consider the request in the alternative.

The motion for the Court to seek an expedited decision from DHCR in the matter on remand from Justice Leverett's January 2019 decision is granted. Since the years-long administrative proceedings at DHCR have repeatedly impacted the immediate proceeding, and since any new administrative determination may have a preclusive effect on the parties' claims before this Court, there is an adequate basis for the request for an expedited decision at DHCR to be made by the Court. A copy of the Court's request for an expedited decision will be mailed to the parties' attorneys with this Decision/Order.


In accordance with the foregoing determinations, it is hereby ORDERED that Respondent's motion is denied, without prejudice to Respondent seeking any relief strictly in relation to Judge Nembhard's May 8, 2018 Decision/Order; it is ORDERED that the branches of Petitioner's cross-motion to mark the proceeding off-calendar and to supplement its discovery responses are denied; and it is ORDERED that the branch of Petitioner's cross-motion requesting that the Court seek an expedited decision at DHCR is granted.


1.   As Judge Philip S. Straniere noted in Capital One Bank v. Stewart, 46 Misc 3d 1208(A), 7 N.Y.S.3d 240 (Civ. Ct. Richmond County 2015), the quotation is attributed to Berra on the subject of back-to-back home runs by Roger Maris and Mickey Mantle (at FN 1). However, a further review of the literature about the quotation indicates that the attribution to Berra may be apocryphal. For an entertaining if inconclusive annotated recap of the debate, see Garson O'Toole, It's Déjà Vu All Over Again, available at (last accessed May 9, 2019).

2.   This was the first of three (3) such motions filed by Respondent, the most recent of which is currently before the Court.

3.   Shortly before the filing of Respondent's motion, Petitioner filed a request at DHCR for an Administrative Determination (AD) of the legal regulated rent and preferential rent for the then-current lease term running from February 1, 2014 to January 31, 2015. For a detailed history of the DHCR proceedings (and related Article 78 and Appellate Division litigation) involving the parties, see Short Form Order/Judgment of Justice Ulysses B. Leverett recorded on January 23, 2019 in Younas Shahid v. DHCR and Hillside Place, LLC, Index No. 4527/2018 (Sup. Ct. Queens County), which is attached as an exhibit to both parties' current motion papers.

4.   The July 13, 2017 PAR Order was rendered after the initial May 2014 request for Administrative Determination was denied by the DHCR Rent Administrator, dismissed upon a prior Petition for Administrative Review (PAR), and ultimately remitted back to DHCR by stipulation after Petitioner filed an Article 78 proceeding challenging the PAR decision (Hillside Place, LLC v. DHCR, Index No. 11857/2014 (Sup. Ct. Queens County)).

5.   Relevant to this proceeding, Justice Butler specifically noted that “[t]enant's position that the reinstatement of Tenant's counterclaim in Civil Court should nullify the agency's determination finds no support in existing law. Accepting Tenant's position would allow for impermissible forum-shopping. Moreover, Tenant's contention that it is inappropriate for the DHCR to fix the appropriate rent while Tenant's Civil Court claims for rent overcharge are pending is inconsistent with Tenants [sic] express stipulation on November 18, 2014 to remit the issue to the DHCR.” (Emphasis in original).

6.   The Deputy Commissioner also found the rent adjustment for the February 1, 2011 to January 31, 2012 lease term to be proper under RGB Order #42.

7.   The Decision/Order also notes that the Court had requested that DHCR expedite its decision.

Clinton J. Guthrie, J.

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