2012]; see also Davis v Waterside Hous. Co., 274 AD2d 318, 319 [1st Dept 2000], lv
denied 95 NY2d 770 [2000] ["Deference to primary administrative review is particularly
important where the matters under consideration are inherently technical and peculiarly within
the expertise of the agency"]; Eli Haddad Corp. v Redmond Studio, 102 AD2d 730, 730
[1st Dept 1984] ["while concurrent jurisdiction does exist, where there is an administrative
agency [*5]which has the necessary expertise to dispose of an
issue, in the exercise of discretion, resort to a judicial tribunal should be withheld pending
resolution of the administrative proceeding"]).
Considering the foregoing precedent, plaintiffs have not demonstrated why the doctrine of
primary jurisdiction should not be invoked here. Indeed, plaintiffs concede that DHCR has
expertise in rent regulation and the ability to investigate fraud claims, albeit, they question the
"level of that expertise, in the wake of [Roberts v Tishman Speyer Props., L.P., 13 NY3d 270 (2009)]"
(mem in opposition at 22). This challenge as to DHCR's expertise is unavailing here.
"Prior to Roberts, the [DHCR] took the position that where participation in the
J—51 program was not the sole reason for the rent-regulated status of a building,
particular apartments could be luxury decontrolled" (Borden v 400 E. 55th St. Assoc., L.P., 24 NY3d 382, 390 [2014]).
The Court of Appeals, in Roberts, did not defer to DHCR's interpretation of the relevant
statute, and "held that a landlord receiving the benefit of a J—51 tax abatement may not
deregulate any apartment in the building pursuant to the luxury decontrol laws" (Borden,
24 NY3d at 390, citing Roberts, 13 NY3d at 286). The issues raised here, however, are