Friscia v. Lem Lee 13th Ltd. Partnership

37 A.D.3d 168, 828 N.Y.S.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered February 14, 2006, which granted defendants’ motion insofar as to dismiss the complaint seeking declaratory relief by reason of plaintiffs failure to exhaust her administrative remedies, unanimously affirmed, without costs.

Inasmuch as the issues raised entail factual determinations in areas within the expertise of the Division of Housing and Community Renewal (DHCR), the motion court properly concluded that judicial review of these matters, if necessary, should await plaintiffs exhaustion of her administrative remedies (see Davis v Waterside Hous. Co., 274 AD2d 318 [2000], lv denied 95 NY2d 770 [2000]). A declaratory judgment action is not properly utilized to strip DHCR of its primary jurisdiction (see Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of N.Y., 94 AD2d 614, 616 [1983], affd 62 NY2d 763 [1984]). Concur—Tom, J.P, Andrias, Friedman, Catterson and Kavanagh, JJ.