February 18, 1992
Appeal from the Supreme Court, New York County (William J. Davis, J.).
The consent judgment based on a stipulation signed by the plaintiff in a prior action in this landlord-tenant dispute does not have collateral estoppel effect precluding plaintiff's instant claim under the Rent Stabilization Law, since any purported waiver of rent stabilization rights in a settlement agreement is invalid as a matter of public policy (Estro Chem. Co. v. Falk, 303 N.Y. 83, 87; see also, Hill v. Wek Capital Corp., 4 A.D.2d 615, 617). No preclusive effect can be given to a judgment as to any issue excluded, as a matter of law, from the settlement agreement underlying that judgment. (See, Matter of Halyalkar v Board of Regents, 72 N.Y.2d 261.)
With regard to the question of damages, the IAS court correctly found that defendants have not disputed plaintiff's calculations of the rent overcharges, choosing instead to dispute the court's subject matter jurisdiction. Nevertheless, in light of the different amounts of overcharges set forth in paragraphs 16 and 23 of the verified complaint and paragraphs 11, 12, 13 and 14 of counsel's affirmation in support of plaintiff's cross-motion for summary judgment, we are unable to determine with any specificity the total amount of rent overcharges.
Moreover, although the IAS court has subject matter jurisdiction in an action alleging a rent overcharge (Smitten v 56 MacDougal St. Co., 167 A.D.2d 205), treble damages are appropriate only where defendants have failed to meet their burden of disproving that such rent overcharges were willful (supra). Therefore, inasmuch as neither the parties nor the court addressed themselves to this issue, we remand the matter for consideration of the appropriateness of the trebling of damages.
The unpublished decision and order entered on October 8, 1991 is recalled and vacated.
Concur — Sullivan, J.P., Milonas, Kupferman, Kassal and Smith, JJ.