Landlord Must Refile Application to Add Garage

Landlord of apartment complex asked the DHCR for permission in 2008 to modify courtyard services by building an underground parking garage under the courtyard. Entry and exits from the parking facility would take over 10 percent of the existing courtyard space. The DHCR denied landlord’s application, finding that the proposed changes would constitute a reduction in required services. Landlord then filed an Article 78 court appeal, claiming that the DHCR’s decision was arbitrary and unreasonable. The court and appeals court ruled against landlord.

In the meantime, landlord filed a new request to modify services in 2011, with a revised plan to address concerns about traffic at the edge of the courtyard. The new plan reduced garage entry and exits to 3 percent of the courtyard space. The DRA denied the new plan as premature, and the DHCR denied PARs filed by both landlord and tenants. Landlord and tenants both filed Article 78 appeals of the DHCR’s second decision. The court ruled against landlord but granted tenants’ appeal, finding that landlord’s new application was barred by collateral estoppel based on the DHCR’s denial of the 2008 application. Landlord and the DHCR both appealed the court’s ruling.

The appeals court ruled for landlord and the DHCR. Landlord’s 2011 application to modify required services was different from its 2008 application and wasn’t barred by collateral estoppel. But landlord’s second application was still premature and could be refiled when landlord obtained the necessary DOB plan approval and permits for its proposal. 

Riverside Tenants Association v. DHCR: 2015 NY Slip Op 08421, 2015 WL 7268137 (App. Div. 2 Dept.; 11/18/15; Dillon, JP, Chambers, Austin, Sgroi, JJ)