Gerard v. Clermont York Associates, LLC

81 A.D.3d 497, 916 N.Y.S.2d 502

Opinion

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 5, 2010, which, in this putative class action commenced by plaintiffs on behalf of themselves and others similarly situated alleging wrongful deregulation of certain rent-stabilized apartments by defendant owner and its predecessors in interest who have been receiving J-51 tax benefits since July 1997, granted defendant’s motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.

The court abused its discretion in dismissing the complaint under the doctrine of primary jurisdiction. This action presents legal issues left open after the Court of Appeals’ decision in Roberts v Tishman Speyer Props., L.P. (13 NY3d 270 [2009]), including whether that decision is to be applied retroactively or prospectively. It is the courts, not the Division of Housing and Community Renewal, that should address these issues in the first instance. Concur—Gonzalez, P.J., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.