| Matter of D'Alessandro v New York State Div. of Hous. & CommunityRenewal |
| 2012 NY Slip Op 00721 [92 AD3d 421] |
| February 2, 2012 |
| Appellate Division, First Department |
| In the Matter of Salvatore D'Alessandro et al.,Appellants, v New York State Division of Housing and Community Renewal,Respondent. Frederick J. Rudd et al., Intervenors-Respondents. |
—[*1] Gary R. Connor, New York (Jeffrey G. Kelly of counsel), for respondent. Belkin Burden Wenig & Goldman, LLP, New York (Alexa Englander of counsel), forintervenors-respondents.
Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.),entered August 24, 2010, which granted the motion of intervenors, the owners astenants-in-common of the subject apartment, to intervene, denied the petition, and dismissed theproceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
In a prior DHCR proceeding commenced in 2005, petitioner Andres Baltra sought to have"the legal rent removed" from his lease because it was "not valid," and have it replaced by the"preferential rent" stated in the lease. DHCR rejected Baltra's claim that the registered legal rentwas "not valid," and established the legal rent for the two-year period running from December 1,2004, through November 30, 2006. Baltra never appealed from that order, which became final.
In the instant proceeding, petitioners again seek to "remove" the legal rent, asserting that itshould be replaced with the preferential rent. This issue is identical to the claim rejected byDHCR in the 2005 order. Petitioners make no substantial argument that Baltra did not have a fulland fair opportunity to litigate the issue of the validity of the legal rent in the 2005 proceeding.Thus, the doctrine of collateral estoppel precludes petitioners from relitigating the issue of thelegal rent for the apartment which includes the newly advanced theory that the initial 1993 leasewas fraudulent (see Gersten v 56 7thAve. LLC, 88 AD3d 189, 201-202[*2][2011]; 9-10Alden Place v Chen, 279 AD2d 618, 619 [2001]).
We have considered petitioners' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and RomÁn, JJ.