Bolden v. 512 W. 156th St. HDFC
| Decision Date | 17 January 2014 |
| Docket Number | Index No. 402693/2009 |
| Citation | 2014 NY Slip Op 30260 |
| Court | New York Supreme Court |
| Parties | PATRICIA M. BOLDEN and JAJA P. BOLDEN, Plaintiffs v. 512 WEST 156TH STREET HDFC, MARTA GOMEZ, DEL-MAR MANAGEMENT SERVICES INC., and GLADYS TORRES, Defendants |
DECISION AND ORDER
I. BACKGROUND
Plaintiffs filed an overcharge complaint with' the New York State Division of Community Renewal (DHCR) August 18, 2006, claiming defendant 512 West 156th Street HDFC had overcharged rent for their apartment in defendant HDFC's building since December 2003. Patricia Bolden commenced this action October 22, 2009, seeking to enforce DHCR orders issued in 2008 and claiming she and her co-tenant adult son Jaja Bolden had overpaid rent beginning in December 2006 through December 2008, totalling $14,494.00, plus treble damages. C.P.L.R. § 213-a; N.Y.C. Admin. Code § 26-413(d)(2); 9 N.Y.C.R.R. § 2206.8(b); Riverside Equities, LLC v. New York State Div. of Hous. & Community Renewal, 58 A.D.3d 534, 535 (1st Dep't 2009). See Century Tower Assocs. v. State of New York Div. of Hous, & Community Renewal, 83 N.Y.2d 819, 823 (1994); Bradbury v. 342 W. 30th St. Corp., 84 A.D.3d 681, 683-84 (1st Dep't 2011); H.O. Realty Corp. v. Stateof N.Y. Div. of Hous, & Community Renewal, 46 A.D.3d 103, 107-108 (1st Dep't 2007); 201 E. 81st St. Assocs. v. New York State Div. of Hous, & Community Renewal, 288 A.D.2d 89, 90 (1st Dep't 2001).
Defendants complain that Jaja Bolden was joined as a plaintiff without notice to them, but Patricia Bolden served a motion to join him on defendants' attorney, which the court granted in an order dated June 18, 2012, that the court also mailed to defendants' attorney. C.P.L.R. §§ 1001(a), 1002(a), 3025(b). DHCR recognized, and defendants have never disputed, that Jaja Bolden has been a co-tenant in the same apartment as Patricia Bolden. DHCR issued the orders that plaintiffs seek to enforce in both tenants' favor'. In fact defendants themselves raised the point that each rent charge during 2007-2008 that plaintiffs claim exceeded the maximum collectible rent was paid by Jaja Bolden.
II. DEFENDANT AGENTS
The DHCR orders that plaintiffs now seek to enforce are against defendant 512 West 156th Street HDFC. Based on these orders, plaintiffs move for summary judgment against all defendants, but fail to show that defendants Gomez, Del-Mar Management Services Inc., or Torres was other than an agent for the disclosed principal, defendant 512 West 156th Street HDFC. Agents for a disclosed principal are not personally liable without explicit evidence of the agents' intent to substitute their liability for or add it to the principal's liability. JDF Realty v. Sartiano, 93 A.D.3d 410 (1st Dep't 2012); Ho Sports,Inc. v. Meridian Sports, Inc., 92 A.D.3d 915, 916-17 (1st Dep't 2012); Star Video Entertainment v. J & I Video Distrib., 268 A.D.2d 423, 424 (1st Dep't 2000). The parties do not dispute that Gomez was an officer of defendant HDFC, Del-Mar Management Services was an agent for management of the building owned by-defendant HDFC, and Torres was Del-Mar Management Services' employee. Plaintiffs present no evidence, however, that Gomez, Del-Mar Management Services, or Torres consented to liability for defendant HDFC's obligations. Citibank, N.A. v. Uri Schwartz & Sons Diamonds Ltd., 97 A.D.3d 444, 447 (1st Dep't 2012); 150 Broadway N.Y. Assoc., L.P. v. Bodner, 14 A.D.3d 1, 8 (1st Dep't 2004); PNC Capital Recovery v. Mechanical Parking Sys., 283 A.D.2d 268, 270 (1st Dep't 2001). Therefore the court denies plaintiffs' motion for summary judgment against defendants Gomez, Del-Mar Management Services, and Torres. C.P.L.R. § 3212(b) and (e).
III. DHCR'S DETERMINATION OF THE MAXIMUM COLLECTIBLE RENT
In an order dated April 15, 2008, DHCR determined that the maximum collectible rent for plaintiffs' apartment since December 2003 was $125.43 per month. In an order dated December 19, 2008, DHCR found that Patricia Bolden was a successor rent controlled tenant to the former tenant, her father, who remained a rent controlled tenant of defendant HDFC through the conversion of defendant's building to a cooperative. In an order dated September 1, 2010, DHCR modified the maximum collectible rent to $125.45.
Although defendants continue to protest that these orders are erroneous and that the law did not permit Patricia Bolden's father and Patricia Bolden to remain rent controlled tenants after the building's conversion, defendants have never appealed any of DHCR's orders. In fact, on October 7, 2010, defendant HDFC, which acknowledges that it is the owner of plaintiffs' apartment and the party against which DHCR issued its orders, applied to DHCR for an exemption of plaintiffs' apartment from rent regulation. This application provided defendant HDFC another opportunity to support defendants' view of the apartment's legal status as unregulated. In an order dated March 31, 2011, however, DHCR denied the owner's application, finding:
After consideration of all the evidence in the record, . . .
Aff. of Patricia Marguerite Bolden in Supp. Ex. K. Defendant HDFC did not appeal this order either.
Res judicata and collateral estoppel apply equally to bar defendant HDFC from using this judicial forum to attack the prior administrative agency determinations, as long as the agency employed "procedures substantially similar to those used in a court of law," as DHCR did. ABN AMRO Bank, N.V. v. MBIA Inc., 17 bolden.155N.Y.3d 208, 226 (2011); Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 153 (1988); Ryan v. New York Tel, Co., 62 N.Y.2d 494, 499 (1984); Metro-North Commuter R.R. Co, v. New York State Exec, Dept. Div. of Human Rights, 271 A.D.2d 256, 257 (1st Dep't 2000). See Gersten v. 56 7th Ave, LLC, 88 A.D.3d 189, 201-202 (1st Dep't 2011) . In fact defendant HDFC admits that it now is precluded from appealing and attacking that order.
IV. THE COURT'S DETERMINATION OF AN OVERCHARGE
Finally, defendants point out that DHCR never actualLy determined that plaintiffs were overcharged rent. In any case, this court maintains concurrent jurisdiction to determine whether and how much the owner has overcharged the tenants. Thornton v. Baron, 5 N.Y.3d 175, 180-81 - (2005); Downing v. First Lenox Terrace Assoc., 107 A.D.3d 86, 88 (1st Dep't 2013); Bradbury v. 342 W. 30th St. Corp., 84 A.D.3d 681, 683 (1st Dep't 2011); East W. Renovating Co. v. New York State Div. of Hous. & Community Renewal, 16 A.D.3d 166, 167 (1st Dep't 2005). In this case concerning rent controlled tenants, as DHCR itself instructed plaintiffs March 16, 2010, after it determined the maximum collectible rent for their apartment April 15, 2008, and notified them and defendant HDFC of its determination:
If the owner has collected more than the legal rent, you have the right to sue for damages. The New York City Rent Control Law does not give DHCR the authority to issue an order in overcharge cases that can be entered as a judgment. Therefore, you may have to proceed in court to collect any rent overcharge.
Reply Aff. of Patricia Marguerite Bolden and Jaja P. Bolden Ex. C, at 2. As reinforced by DHCR's own further order datedSeptember 1, 2010, after DHCR again determined the maximum collectible rent:
If the owner has collected more than the legal rent, the tenant(s) have the right to sue for damages. . . . The New York City Rent Control Law does not give DHCR the authority to issue an order in overcharge cases that can be entered as a judgment. Therefore, you may have to proceed in court to collect any rent overcharge.
Id. Ex. D. This order was DHCR's disposition of Patricia Bolden's overcharge complaint, ceding primary jurisdiction to the court to determine the amount of any overcharge. Gerard v. Clermont York Assoc., LLC, 81 A.D.3d 497, 498 (1st Dep't 2011); Wong v. Gouverneur Gardens Hous. Corp., 308 A.D.2d 301, 303 (1st Dep't 2003); Davis v. Waterside Hous. Co., 274 A.D.2d 318, 319 (1st Dep't 2000) . The notice to which defendants refer as indicating such a...
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