Roberts Interpreted

The Appellate Division First Department yesterday decided one open question of interpretation of the 2009 Roberts decision…leaving dozens yet to be resolved.

In Gersten, et al vs. 56 7th Ave. LLC, et al, the court found that a 1999 DHCR luxury decontrol order that the tenants did not appeal was final. Even though the Court of Appeals decision in Roberts said that units in buildings receiving J-51 tax benefits could not be deregulated, the questions of retroactivity, statutes of limitations, and the finality of DHCR orders were left open.

While the owners won the Gersten case on the theory of collateral estoppel — the tenants couldn’t re-litigate an issue when they could have appealed the original order on the same grounds — the Appellate Division explicitly rejected other owner arguments on retroactivity and statute of limitations. It is still unclear how the courts might view vacancy deregulated units with no DHCR order and widely varying fact patterns.

The owners in the Gersten case were represented by Belkin, Burden, Wenig, and Goldman, LLC.

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