Zito v. Fischbein, Badillo, Wagner & Harding

Dec 28, 2006
Versions:35 A.D.3d 306
831 N.Y.S.2d 25

Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered May 13, 2003, as amended by an order of the same court and Justice, entered February 22, 2005, which, to the extent appealed from, referred defendants’ overcharge and “key money” claims to the Division of Housing and Community Renewal (DHCR), and order, same court (Shirley Werner Kornreich, J.), entered May 25, 2006, which, to the extent appealed from, amended the May 13, 2003 order, by holding that the base date for determining tenants’ claim for rent overcharges is January 31, 1998, and referred the determination of rent to DHCR, unanimously affirmed, without costs. Appeal from order, same court (Shirley Werner Kornreich, J.), entered February 15, 2006, unanimously dismissed, without costs.

The court properly applied CPLR 203 (f) in determining that defendants’ counterclaims, asserted in their 2002 answer, do not relate back to the 1991 complaint. Defendants’ 2002 answer was in effect an amended answer. Pursuant to stipulation and agreement in 1991, tenants appeared in the action, interposed a general denial to the complaint and conceded that issue had been joined. The court properly concluded that defendants are not entitled to application of the relation-back doctrine since the 1991 answer gave no notice of the counterclaims interposed in the 2002 amendment (see Long v Sowande, 27 AD3d 247, 249 [2006]; Rodriguez v Palange, 295 AD2d 155 [2002], lv denied 98 NY2d 728 [2002]).

The court correctly held that the tenants’ claim for rent overcharges and refund of “key money” should be resolved in the first instance by DHCR (see Wasserman v Gordon, 24 AD3d 201, 202 [2005]; 390 W. End Assoc. v Zouker, 302 AD2d 227 [2003]). Concur—Buckley, P.J., Andrias, Saxe, Gonzalez and McGuire, JJ.