MEYERS v. FOUR THIRTY REALTY LLC (2019)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered July 5, 2018, which granted defendant's motion for summary judgment declaring the subject apartment exempt from rent regulation and dismissing the balance of the complaint, declared the apartment exempt from rent regulation, and dismissed the complaint in its entirety, unanimously reversed, on the law, the motion denied, and the declaration vacated.

The court providently exercised its discretion in permitting defendant to make a third motion for summary judgment after the conclusion of discovery that was found necessary by this Court in a prior appeal (Meyers v. Four Thirty Realty, 127 A.D.3d 501, 502, 8 N.Y.S.3d 50 [1st Dept. 2015];  see Forte v. Weiner, 214 A.D.2d 397, 398, 624 N.Y.S.2d 596 [1st Dept. 1995], lv dismissed 86 N.Y.2d 885, 635 N.Y.S.2d 950, 659 N.E.2d 773 [1995] ).  On the instant motion, defendant submitted an order issued by the Division of Housing and Community Renewal (DHCR) in February 1995, which it claims was newly discovered, allowing for deregulation of the apartment upon the expiration of the then existing lease.

In the prior appeal brought by defendant, we determined that, as defendant conceded, plaintiff is entitled to a rent-stabilized lease because the building was receiving J–51 tax benefits at the time the apartment was deregulated, but absent a fuller record, any determination of the proper base date rent was premature (127 A.D.3d at 501, 502, 8 N.Y.S.3d 50).  Defendant did not seek to appeal that determination.

The 1995 order was available to defendant, regardless of whether it actually knew about it.  Even accepting defendant's claim, that it was unaware of the 1995 order when it made that concession or filed its prior appeal, we perceive no public policy or other reason to disregard defendant's decision to concede the issue (see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 [1975];  Kent v. Bedford Apts. Co., 237 A.D.2d 140, 654 N.Y.S.2d 143 [1st Dept. 1997] ).  Defendant had a full and fair opportunity to litigate whether the apartment was properly deregulated, and elected to concede that it was subject to rent stabilization.

Not only are the parties bound by our prior order on the issue of the apartment's regulated status, there were no extraordinary circumstances that would have permitted the motion court to disregard our order (Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept. 2012] ).  Under these circumstances, we need not consider whether the parties are otherwise bound by DHCR's erroneous 1995 order.

We have considered defendant's other arguments and find them unavailing.