Derin v. Division of Housing & Community Renewal

140 A.D.3d 514, 34 N.Y.S.3d 427

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2016
• Docket: 1461 100763/14
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered March 25, 2015, in this action challenging the deregulation of plaintiff’s former apartment and for damages, granting the motion of defendant Division of Housing and Community Renewal to dismiss the complaint, unanimously affirmed, without costs.

It is undisputed that in 2005 plaintiff challenged the luxury deregulation of his apartment in a prior CPLR article 78 proceeding, alleging that the rents for the two adjoining units that he combined into one integrated unit were improper because there was no single lease for the entire living space. The record reflects that this claim was rejected by the court in the prior proceeding and petitioner’s appeal was dismissed for failure to perfect.

Here, the court properly found that plaintiff was barred from re-litigating claims that were necessarily decided in the prior action between the same parties (see Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 122 [2008], cert denied 555 US 1136 [2009]; see also Noto v Bedford Apts. Co., 21 AD3d 762, 765 [1st Dept 2005]). Although plaintiff now asserts a fraud claim based on the same transaction, this claim is barred because it could have been raised in the prior proceeding (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12-13 [2008]).

We have considered plaintiff’s remaining arguments and find them unavailing.

Concur — Tom, J.P., Mazzarelli, Manzanet-Daniels, Kapnick and Kahn, JJ.