Sohn v. Calderon

• Decision Date: 26 June 1990
• Citation: 162 A.D.2d 331,557 N.Y.S.2d 15
• Parties: Pinky SOHN, Plaintiff-Respondent, v. Lucretia CALDERON, et al., Defendants-Appellants, and State of New York, Division of Housing and Community Renewal, Intervenor-Defendant-Appellant. In the Matter of the Application of Pinky SOHN, et al., Petitioners-Respondents, For a Judgment etc., v. STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, etc., Respondent-Appellant, and Lucretia Calderon, et al., Intervenors-Respondents-Appellants. Community Action For Legal Services, Inc., et al., Amici Curiae.
• Court: New York Supreme Court — Appellate Division

Page 15

557 N.Y.S.2d 15

162 A.D.2d 331

Pinky SOHN, Plaintiff-Respondent, v. Lucretia CALDERON, et al., Defendants-Appellants, and State of New York, Division of Housing and Community Renewal, Intervenor-Defendant-Appellant In the Matter of the Application of Pinky SOHN, et al Petitioners-Respondents For a Judgment etc., v. STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, etc Respondent-Appellant, and Lucretia Calderon, et al., Intervenors-Respondents-Appellants. Community Action For Legal Services, Inc., et al., Amici Curiae.

Supreme Court, Appellate Division, First Department.

June 26, 1990.

J.R. Metz, for Pinky Sohn.

M.G. Simpson, J.C. Nisley, for Lucretia Calderon, et al.

L. Alexander, for State of N.Y., Div. of Housing and Community Renewal.

D. Rosenthal, for Community Action For Legal Services, Inc., et al., amici curiae.

Before SULLIVAN, J.P., and ROSS, MILONAS, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Francis Pecora, J.), entered August 17, 1988, which, inter alia, declared that plaintiff was entitled, under the New York City Rent and Eviction Regulations and New York City Rent and Rehabilitation Law, to demolish the subject building, obtain certificates of eviction with respect to rent controlled tenants and not be required to offer renewal leases to rent-stabilized tenants, conditioned upon securing, from the Department of Buildings, the approvals required by law, and which permanently enjoined the Department of Housing Preservation and Development and tenants from seeking to obtain an order requiring plaintiff to correct outstanding violations issued against the premises; and an order of the same Court, entered July 8, 1988, which permanently enjoined the State Division of Housing and Community Renewal (DHCR) from prosecuting a harassment proceeding against plaintiff based upon claims made by tenants, are unanimously affirmed, without costs.

Appellants' argument that the Supreme Court was without authority to issue the order, since exclusive jurisdiction allegedly rests with DHCR, has twice been considered and rejected by this Court. Accordingly, the doctrine of law of the case requires that the instant argument likewise be rejected. Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 (1975). In any event, the record of the proceedings below supports the view that plaintiff met the requisite criteria to demolish the building under the Rent and Eviction Regulations and the New York City Rent and Rehabilitation Law, i.e., that the cost of removing violations filed against the structure would substantially equal or exceed the assessed value of the structure. New York City Rent and Eviction Regulations, [9 NYCRR] § 2204.8(a)(1) and N.Y.C. Administrative Code § 26-408 (b)(4)(a). Additionally, plaintiff demonstrated entitlement to withdraw the premises from the rental market by producing evidence of his inability to obtain a net annual return of 8 1/2% of the assessed value of the property and demonstrating that he had not intentionally or willfully impaired his ability to obtain such a...