Nasaw v. Jemrock Realty Co., 225 A.D.2d 385 (1996) 639 N.Y.S.

2d 37

225 A.D.2d 385 Supreme Court, Appellate Division, First Department, New York. David NASAW, etc., et al., PlaintiffsAppellantsRespondents, v. JEMROCK REALTY CO., et al., DefendantsRespondentsAppellants . March 14, 1996.

Court action to bring landlord into compliance with Department of Housing and Community Renewal (DHCR) order regarding manned elevators, was properly stayed rather than dismissed, until Departments final determination, since Department possessed special competence to deal with issues raised. New York City Administrative Code 26514. 3 Cases that cite this headnote

Tenants brought lawsuit against landlord for unilaterally discontinuing manned elevator service. The Supreme Court, New York County, Davis, J., denied cross-motions for summary judgment, directed plaintiffs to file complaint with Department of Housing and Community Renewal (DHCR), and stayed proceedings. Landlord appealed. The Supreme Court, Appellate Division, held that: (1) court action was properly stayed rather than dismissed, and (2) tenants were entitled to injunction to enforce Department order requiring manned elevator service. Order modified, affirmed. injunction granted,

[2]

Injunction Landlord and tenant Tenants were entitled to injunction to enforce Department of Housing and Community Renewal (DHCR) order requiring manned elevator service, where landlord unilaterally effected substitution of services.

Attorneys and Law Firms West Headnotes (2) **37 David Ratner, plaintiffs-appellants-respondents. David S. Abramson, defendants-respondents-appellants. for for

[1]

Action Actions and administrative proceedings

Before WALLACH, J.P., and NARDELLI,

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Nasaw v. Jemrock Realty Co., 225 A.D.2d 385 (1996) 639 N.Y.S.2d 37

WILLIAMS and MAZZARELLI, JJ. Opinion *385 MEMORANDUM DECISION.

ch. 4), DHCR does not **38 possess exclusive jurisdiction with respect to the maintenance of services (see Administrative Code, 26514). [2] A valid order was issued by the agency on May 12, 1967 providing for manned elevator service. Defendants-landlords failed to obtain approval from the agency before unilaterally effecting a purported substitution of services required by that order. Therefore, we modify to reverse the denial of injunctive relief to the plaintiffs and grant the tenants application for such pendente lite relief enforcing the terms of the order until such time as the agency makes another final determination. While we warned, in Bartley v. Walentas, 78 A.D.2d 310, 434 N.Y.S.2d 379, that the function of the Supreme Court was not the detailed management of a building, we also noted that damages may not provide an adequate remedy for a continuing breach ... [which] may well require injunctive relief (id, at 314, 434 N.Y.S.2d 379). This is such a case. There is no dispute that the extant order provides for services which were unilaterally discontinued by defendants. Accordingly, plaintiffs are entitled to an injunction to enforce the 1967 order until such time as the DHCR relieves defendants from its terms. Parallel Citations 225 A.D.2d 385, 639 N.Y.S.2d 37

Order of the Supreme Court, New York County (William Davis, J.), entered March 1, 1995, which denied the parties respective motions for summary judgment, directed plaintiffs-tenants to file a complaint against defendants-landlords with the Division of Housing and Community Renewal (DHCR) within 30 days, and stayed the action pending final determination in the administrative proceeding, is unanimously modified, on the law and facts, to grant the plaintiffs motion for a preliminary injunction enforcing the terms of the existing order of the DHCR regarding manned elevator services at the premises, and otherwise affirmed, without costs or disbursements. [1] We agree with the IAS court that under the doctrine of primary jurisdiction (see, *386 Capital Tel. Co. v. Pattersonville Tel. Co., 56 N.Y.2d 11, 22, 451 N.Y.S.2d 11, 436 N.E.2d 461), court action in this landlord-tenant dispute should be postponed until a final determination is made by the agency which possesses the special competence to deal with the issues raised. We also agree that the action was properly stayed rather than dismissed. Pursuant to the Rent Stabilization Law of 1969 (Administrative Code of City of NY, tit. 26,
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2012 Thomson Reuters. No claim to original U.S. Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.