
    Rosgro Realty Co., Appellant, v. William Braynen et al., Respondents.
    Supreme Court, Appellate Term, First Department,
    February 17, 1972.
    
      Abraham, J. Yasgour for appellant. Lorenzo Casanova and Hippocrates P. KouraJcos for respondents.
   Per Curiam.

The order appealed from was an attempt of a Judge at Special Term of the Civil Court, in violation of the doctrine against collateral vacatur, to review and reverse the prior, subsisting order of a peer Judge made at Trial Term of the Civil Court in a summary proceeding (Mt. Sinai Hosp. v. Davis, 8 A D 2d 361; Endurance Holding Corp. v. Kramer Surgical Stores, 227 App. Div. 582, 584; CPLB 2221). No appeal having been taken within the time limited, the subsisting stay order is unassailable for any claimed error unless, in the exercise of discretion, despite gross laches, for some extraordinary reason, leave be granted to reargue, at which time cross motions to amend or supplement any defect in pleadings must properly be considered under the extensively liberalizing provisions of CPLB 3025 (subds. [b], [c]).

Turning to the merits, subdivision 2 of section 325 of the Multiple Dwelling Law provides that no rent shall he recovered by the owner of a multiple dwelling who fails to comply with the local law requirements of cities of over one million residents for registration of owners of multiple dwellings, until the owner complies with such requirements; however, if a tenant of an unregistered dwelling voluntarily pays his rent, he does not have a claim or cause of action for its recovery. A voluntary payment under the section means “ payment other than one made pursuant to judgment in an action or special proceeding.”

Subdivision b of section D26-41.21 of the Administrative Code of the City of New York provides that an owner who fails to file a statement of registration as required by the code shall he denied the right to recover possession of the premises for nonpayment of rent during the period of noncompliance; and, in the discretion of the court, shall suffer a stay of proceedings to recover rent during such period.

The orders vacated by the court below granted tenants stays of pending proceedings to recover possession of their premises and to recover rent. The stays were authorized by the provisions of the Multiple Dwelling Law and Administrative Code outlined above, as well as by section 755 of the Beal Property Actions and Proceedings Law. Moreover, the stays were granted at the instance of the tenants; the deposits were not made under a judgment in an action or special proceedings. Tenants, therefore, have no claim or cause of action for their recovery (Multiple Dwelling Law, § 325, subd. 2; see, also, Beal Property Actions and Proceedings Law, § 755, suhd. 3).

Also on the merits, tenants’ motion to dismiss the proceedings on jurisdictional grounds should not have been granted. Under section D26-41.21 of the Administrative Code, the owner of a multiple- dwelling is required to allege in a nonpayment summary proceeding that he has filed a statement of registration, to set forth the registration number, and to annex a copy of the receipt of the registration to the petition. A petition omitting these .allegations may, perhaps, fail to state facts sufficient to constitute a cause of action. Omitting the allegations does not, however, deprive the court of subject matter jurisdiction (Haacke v. Marx, 210 App. Div. 248, affd. 240 N. Y. 568; Crane v. Van Derveer, 45 App. Div. 139; Kaplan v. Bernstein, 115 Misc. 413).

The line of eases alluded to in the dissent as Cal Cal Realty Corp. v. Taylor (67 Misc 2d 903) and its progeny, despite some loose usage of the term ‘ ‘ jurisdiction! defect ”, instead of “ fatal defect in the proof ”, are not necessarily to the contrary. In each of those cases a final order on appeal, dismissing the petition, resulted from the failure to plead and prove the fact of filing, etc., of a registration statement; not from the mere failure to allege it. Those cases should not be construed as placing any limitation on the “ widest possible latitude ” in granting leave to amend or supplement pleadings, at any stage, which CPLB 3025 so fully confides to the liberal discretion of trial courts in any and all proceedings.

The order should be reversed, without costs, and motion denied.

Steeit, J.

(dissenting in part). Tenants moved to vacate nonpayment summary proceedings and orders entered therein, pursuant to section 755 of the Beal Property Actions and Proceedings Law on the ground that the court lacked subject matter jurisdiction of said proceedings. This contention was predicated upon prior decisions of this court which appear to announce a rule that the filing of a registration statement in compliance with the Housing Maintenance Code (which is a prerequisite for recovery of possession of premises for nonpayment) is a jurisdictional fact which must be pleaded and failure to so plead divests the Civil Court of jurisdiction over the proceedings and requires dismissal thereof (see, e.g., Cal Cal Realty Corp. v. Taylor, 67 Misc 2d 903; Hotel Martha Washington Mgt. Co. v. Swinick, 65 Misc 2d 1040; Princess Mgt. Corp. v. Williams, Nov. 1970, No. 478; E.R.P. Realty Co. v. Kempsey, N. Y. L. J., Feb. 26, 1971, p. 2, col. 6). In the instant proceedings, the fact of due registration was neither pleaded nor proven .

It is a time-honored rule that a Judge should not ordinarily reconsider, disturb or overrule an order in the same action of another Judge of co-ordinate jurisdiction. (See CPLB 2221.) The majority holds that this rule applies even to challenge to the subject matter jurisdiction of the court. If that be so, then the appropriate disposition would seem to be to reverse and remand the matters to the Judges who issued the original orders. I do not agree with the suggestion that laches, either with respect to appeal or reargument, may be raised as a bar to the claim of lack of subject matter jurisdiction herein.

If the merits be reached, then I conclude that the proceedings were properly dismissed and the section 755 of the Real Property Actions and Proceedings Law orders properly vacated. The concurring memorandum herein suggests that the failure to plead the allegations relating to registration of a multiple dwelling does not deprive the court of jurisdiction and that the omission may be corrected by amendment or supplementation of the pleadings. I find this view to be at variance with the apparent rule heretofore promulgated by this court in the above-cited cases (see, also, Dahmen v. Gregory, 184 Misc. 724). A considerable number of lower courts have acted in reliance upon such apparent rule and, indeed, our decisions appear to have prompted enactment of subdivision (f) of section 2900.21 of the Rules of the Civil Court of the City of New York (22 NYCRR 2900.21 [f]), which spells out the mandatory pleading requirements in this regard. While I find some merit in the view expressed in the concurring memorandum, I am constrained— until the rule of Cal Cal Realty Corp. v. Taylor (supra) and its progeny, is modified or overruled in an appropriate case — to adhere to the doctrine of stare decisis.

While dismissal of the proceedings and vacation of the order on jurisdictional grounds appear proper, I believe that the lower court erred in granting tenants’ further request for return of all rents deposited with the court pursuant to the section 755 of the Real Property Actions and Proceedings Law orders. As the concurring memorandum correctly notes, the payments of rents into court were voluntary payments and tenants have no claim or cause of action for their recovery (Multiple Dwelling Law, § 325, subd. 2). The only permissible disposition of these funds is to return them to the landlord.

Accordingly, I would reverse and remit the matter to the Judges who issued the section 755 of the Real Property Actions and Proceedings Law orders for appropriate disposition of the jurisdictional challenge or, reaching the merits, I would modify so much of the orders on appeal as directs the return of rent deposits to tenants and would direct the return thereof to landlord.

Markowitz, J. P., and Quinn, J., concur; Streit, J., dissents, in part, in memorandum.

Order reversed, etc.  