698 FLUSHING REALTY CORP v. Emily Lazar, Justin Gravlee, David Kowalsky, Jodyann Morgan, Luke Antonio Richardson, Maria Camia, Emily Andersen, Elan Cohen, Jenny Akchin, Yotam Sayer, Kyle Fraser, “John Doe,” and “Jane Doe,” Undertenants/Appellants. (2018)

ORDERED that, on the court's own motion, the notice of appeal from the stated portion of the order dated March 31, 2016 is deemed a premature notice of appeal from the stated portion of the final judgment entered June 10, 2016 (see CPLR 5520 [c] ); and it is further,

ORDERED that the final judgment, insofar as appealed from, is affirmed, without costs.

Landlord commenced this holdover proceeding by petition dated October 14, 2014, based on allegations that the month-to-month tenancy of tenants Rebekah Schiller and Spike Appel had expired due to the service of a 30–day notice; that the premises had been rented for “residential purposes”; and that the premises was not subject to rent regulation.

Tenant Schiller and the undertenants (collectively, appellants) interposed an answer, which included a general denial and asserted two affirmative defenses: 1) that landlord had commenced the proceeding in retaliation for appellants' rent strike and commencement, six months earlier, of an action in the Supreme Court against landlord, the Commissioner of the Department of Buildings and the City of New York; and 2) that the premises is an “interim multiple dwelling” within the meaning of the Loft Law (Loft Law [Multiple Dwelling Law art 7–c] § 280, et seq. [Loft Law] ) and the tenancy is therefore not month to month.

The Supreme Court action had been brought for injunctive and declaratory relief from a “Peremptory Vacate Order,” dated April 10, 2014, that had been issued by the New York City Department of Buildings (DOB) regarding conditions in the premises. Appellants' pleading requested, among other things, “a declaration that [appellants] have a vested right of possession to their apartment units within the Premises inasmuch as ETPA or Loft Law applies[.]” On May 12, 2015, a judgment was entered in the Supreme Court action which, among other things, found appellants' claims regarding protections under either the Emergency Tenant Protection Act of 1974 [ETPA] or the Loft Law to be “completely without merit,” and which granted landlord and the DOB summary judgment and denied appellants' request for injunctive and declaratory relief. Thereafter, landlord moved for summary judgment in this holdover proceeding, which the Civil Court granted on the ground, among others, that appellants had failed “to submit evidence to create a triable issue of fact ․ [and] the Supreme Court ․ already determined that [tenants] lack statutory protection.” On appeal, tenants contend that they have raised triable issues of fact with respect to retaliatory eviction, Loft Law protection and rent-stabilization status. Landlord contends, among other things, that appellants are barred from relitigating issues that had previously been decided in the Supreme Court action.

Collateral estoppel applies when: 1) the issues in both proceedings are identical; 2) the issue in the prior proceeding was actually litigated and decided; 3) there was a full and fair opportunity to litigate the issue in the prior proceeding; and 4) the issue previously litigated was necessary to support a valid and final judgment on the merits (see Ryan v. New York Tel. Co., 62 NY2d 494, 500–501 [1984]; Gramatan Home Invs. Corp. v. Lopez, 46 NY2d 481, 485 [1979] ). These criteria have been satisfied here with respect to appellants' defenses.

With respect to appellants' retaliatory eviction defense, it is undisputed that landlord commenced this eviction proceeding within six months of appellants' commencement of the Supreme Court action, which, among other things, sought an order directing landlord to remedy improper conditions in the premises. Pursuant to Real Property Law § 223–b (5), this creates a “rebuttable presumption” of retaliation, and it is the landlord's burden to prove a “credible explanation of a non-retaliatory motive for his acts” (see Real Property Law § 223–b [5] ). The presumption does not apply, however, where, as the Supreme Court found, “the conditions that resulted in the subject premises being rendered uninhabitable were created by petitioners themselves” (see Real Property Law § 223–b [6] ). Since appellants did not appeal the Supreme Court's determination, the court's finding that appellants created the conditions is final and the issue cannot be reconsidered in this proceeding. Appellants' retaliatory eviction claim therefore must fail.

The Supreme Court judgment also determined that appellants were not eligible for protection under either the ETPA or the Loft Law. Appellants are similarly collaterally estopped from relitigating those issues in this proceeding.

Accordingly, the final judgment, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.