Jenkins v. State of New York Division of Housing & Community Renewal

264 A.D.2d 681, 695 N.Y.S.2d 563, 1999 N.Y. App. Div. LEXIS 9499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1999
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered December 8, 1997, which, inter alia, granted the cross motion of defendant New York State Division of Housing and Community Renewal (DHCR) to dismiss plaintiffs’ hybrid pleading seeking relief pursuant to CPLR article 78 and a declaratory judgment, unanimously affirmed, without costs.

In defendant landlord’s now concluded summary nonpayment proceeding against plaintiffs, plaintiffs answered by interposing affirmative defenses and counterclaims alleging, inter alia, the landlord’s failure annually to register the apartment with DHCR, rent overcharges, and the failure of the landlord to pay the annual rent stabilized apartment fee, which claims were duly heard and determined by Civil Court (see, Wolfisch v Mailman, 182 AD2d 533) adversely to plaintiffs. Having had a full and fair opportunity to litigate these issues in the prior Civil Court proceeding, plaintiffs are now precluded from relitigating the same issues in this subsequent proceeding (see, D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456). In any event, whether to grant declaratory relief is discretionary (CPLR 3001; Board of Educ. v Nyquist, 50 NY2d 889, 891), and Supreme Court appropriately concluded that declaratory relief was not warranted given the prior disposition of the issues as to which such relief was sought by plaintiffs. Dismissal of the pleading insofar as it sought article 78 relief was, as the motion court observed, also warranted by plaintiffs’ failure to exhaust their administrative remedies prior to seeking article 78 review. Concur — Ellerin, P. J., Rosenberger, Nardelli, Mazzarelli and Andrias, JJ.