Hefti v. N.Y.S. Div. of Hous. & Cmty. Renewal

Susan Kathryn Hefti, appellant pro se.

Mark F. Palomino, New York (Dawn Ivy Schindelman of counsel), for New York State Division of Housing and Community Renewal, respondent.

SDK Heiberger LLP, New York (Jacqueline Handel–Harbour of counsel), for 93rd Building Corp., respondent.

Gische, J.P., Mazzarelli, Friedman, Gonza´lez, Mendez, JJ.

Judgement, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about September 22, 2020, granting respondent New York State Division of Housing and Community Renewal's (DHCR) cross motions to remand both petitioner Susan Kathryn Hefti's and petitioner 93rd Building Corp.’s petitions back to DHCR for further proceedings, denying both petitions as moot, and dismissing the proceedings brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The court properly granted DHCR's cross motions, as DHCR identified an irregularity in a vital matter which required further proceedings ( 9 NYCRR 2527.8 ; see Matter of Zelig v. State of New York Div. of Hous. & Community Renewal, 189 A.D.3d 657, 659, 139 N.Y.S.3d 138 [1st Dept. 2020] ; Matter of 60 E. 12th St. Tenants’ Assn. v. New York State Div. of Hous. & Community Renewal, 134 A.D.3d 586, 588, 23 N.Y.S.3d 40 [1st Dept. 2015], affd 28 N.Y.3d 962, 38 N.Y.S.3d 523, 60 N.E.3d 419 [2016] ).

We reject Hefti's contention that she may now litigate her overcharge claim in Supreme Court rather than before DHCR. While the court and DHCR have concurrent jurisdiction over rent overcharge claims, subject to the tenant's choice of forum (see Collazo v. Netherland Prop. Assets LLC, 35 N.Y.3d 987, 990, 125 N.Y.S.3d 337, 149 N.E.3d 30 [2020] ), Hefti chose DHCR. After choosing DHCR, Hefti then took no steps to have this matter litigated before the court rather than reviewed by the agency, and only sought review from the court pursuant to CPLR article 78 once the agency had issued its determination.

We have considered Hefti's remaining arguments and find them unavailing.

Petitioner 93rd Building Corp. did not file a notice of appeal, and we have not considered its arguments concerning the rent regulation status of the unit.

Motion for a stay denied as moot.