Judge Gary Marton
Tenants moved to vacate a default judgment. Landlord commenced a nonpayment proceeding, and tenant Kirbow interposed a pro se answer with 17 defenses, including rent overcharge. Respondents failed to appear on the adjourned date and a default judgment for $16,800 was entered against them. They sought vacatur of same three months later. The court noted six months before petitioner began the proceeding, tenants filed a rent overcharge complaint with the Division of Housing and Community Renewal (DHCR), that was still pending. As such, the court ruled tenants may not assert their rent overcharge claim in this action. Tenants claimed if their motion was granted, and the default vacated, they would withdraw their complaint with DHCR to be able to proceed with their overcharge claim here. The court stated, however, absent extraordinary circumstances, the choice of forum, once made, was binding, noting as tenants chose DHCR, they may not assert that they prefer to abandon that long-pending administrative proceeding, and have their claim adjudicated in housing court. Thus, as tenants failed to make a prima facie showing of either of their defenses, tenants’ motion was denied.
