SANFORD AVENUE REALTY CO LLC v. REYNOSO (2005)

In a summary proceeding based upon nonpayment of rent, Rafael Reynoso appeals, by permission, from an order of the Appellate Term of the Supreme Court, Second and Eleventh Judicial Districts, dated July 7, 2003, which reversed an order of the Civil Court of the City of New York (Katz, J.), entered June 3, 2002, dismissing the petition and granting his motion for summary judgment on his counterclaim for rent overcharges by the predecessor owner, reinstated the petition, denied his motion for summary judgment on the counterclaim for rent overcharges and treble damages, and, upon searching the record, awarded summary judgment in favor of the petitioner dismissing the counterclaim without prejudice to his pursuing any appropriate remedy with respect to the determination of the New York State Division of Housing and Community Renewal.

ORDERED that the order is affirmed, with costs.

The Appellate Term properly determined that the appellant's motion for summary judgment on his counterclaim for rent overcharges and treble damages against the petitioner should have been denied as there is no evidence that the petitioner had notice of the underlying administrative proceeding which awarded the appellant those damages.   This factor takes this case out of the purview of 9 NYCRR 2526.1(f)(2) (cf. Brea v. Jackson Heights Props., 281 A.D.2d 579, 723 N.Y.S.2d 49).   Thus, the appellant was not entitled to recover from the successor landlord a judgment that was the responsibility of the predecessor owner, but this result does not, as the Appellate Term recognized, foreclose the appellant from pursuing any other appropriate remedy with respect to the determination of the New York State Division of Housing and Community Renewal (see 9 NYCRR 2526.1[e] ).