Respondents Stacy Rosenblatt, Peter Golia, and 2649 Frederick Douglass Realty Corp. move once again to stay a hearing on co-respondent Department of Housing Preservation and [*2]Development of the City of New York's (HPD) motion for civil and criminal contempt. Respondents argue that the hearing should be postponed until respondent Golia's pending criminal cases for unlawful eviction are resolved. (See People v Golia, Docket Numbers 2003SN037638 & 2003SN078094, Criminal Court, New York County.) The motion for a stay is denied.

HPD's contempt motion arises out of respondents' alleged failure to obey the Honorable Jerald Klein's order of August 5, 2003, directing respondents to correct hazardous violations on or before August 12, 2003. On July 23, 2003, the Department of Buildings (DOB) issued a vacate order. HPD issued a separate vacate order on July 24, 2004.

This is respondents' second motion for a stay. On July 20, 2004, respondents made their first motion for a stay of this contempt proceeding before the Honorable Kevin C. McClanahan. The court denied the motion. (See Allen v Rosenblatt, NYLJ, Sept. 2, 2004, at 20, col 1 [Hous Part, Civ Ct, NY County].) The court found that granting a stay would prejudice petitioner's right to possess the apartment. The court also found that "[t]here is little cognizable risk of inconsistent results between the criminal proceeding related to the violation of the stop-work order and whether respondents are in contempt of the order to correct." (Id.)

On October 19, 2004, respondents again moved to stay the contempt hearing, this time before this court. Respondents claim that Golia will assert his Fifth Amendment right not to incriminate himself when his co-respondents call him to testify in this contempt proceeding and that because they need him to testify, the contempt hearing should await the conclusion of his criminal trial.

Civil Court has the discretion to stay a proceeding pending the resolution of a related criminal action. (CPLR 2201; Britt v Intl. Bus Srvs., Inc., 255 AD2d 143, 144 [1st Dept 1998, mem].) When deciding whether to grant a stay, the court weighs the following factors: "avoiding the risk of inconsistent adjudications, application of proof and potential waste of judicial resources." (Britt, 255 AD2d at 144; accord Access Capital, Inc. v DeCicco, 302 AD2d 48, 51 [1st Dept 2002, mem].) There is no risk of inconsistent results between the two proceedings. It is irrelevant whether Golia is guilty of unlawful eviction for this court to determine whether respondents are in contempt for allegedly failing to carry out a court order to correct violations. Golia would provide different evidence in each case were he to testify in either of them. Golia's testimony in the criminal action would concern the events before the DOB and HPD vacate orders of July 2003. Golia's testimony in this contempt proceeding would concern the events after the vacate orders. Golia's testimony in the criminal action would be largely irrelevant to this contempt proceeding.

There is, moreover, a risk of undue delay if this court stays the contempt hearing. The criminal action against Golia has been ready for trial since May 2004. The criminal action is currently adjourned to November 15, 2004, because Golia's defense attorney, Stephen G. Murphy, Esq., is engaged in People v Battle, a homicide trial before the Honorable Robert [*3]Hanophy in Supreme Court, Queens County. Justice Hanpohy has issued an order forbidding Murphy to commence any trial until the homicide trial is completed. This court cannot determine when the Queens homicide trial or Golia's criminal action will end. In light of these uncertainties, this court cannot delay this case for an undeterminable time.

Furthermore, respondents have not shown that Golia's testimony will be critical and necessary in this contempt hearing. (See Britt, 255 AD2d at 144 [holding that factor to consider in motion to stay is whether defendant-witness's testimony is critical and necessary].) Respondents have not submitted an affidavit to support their motion for a stay. And although respondents state that they will call Golia to testify at the contempt hearing, they do not proffer what Golia's testimony might be in either this proceeding or in the criminal case. This court cannot determine, therefore, whether Golia's testimony is critical or necessary.

Additionally, the court cannot ascertain whether Golia will assert any Fifth Amendment right not to testify during the contempt hearing. Respondents attach no affidavit from Golia or even an affirmation from his criminal-defense attorney stating that Golia will plead the Fifth. At oral argument on this motion, Golia was eager to tell the court as much as he could about the facts of this case. Not at all was reticent. Given his eagerness to defend and that he has not submitted an affidavit stating that he will plead the Fifth Amendment, the court ought not assume that respondents are accurately conveying Golia's sentiments.

Finally, petitioner will be prejudiced if this court were to grant respondents' motion to delay the contempt hearing. (See Britt, 255 AD2d at 144 [holding that factor to consider in motion to stay is whether a litigant will be prejudiced].) Petitioner has been unable to occupy his apartment or access his personal belongings since July 2003. Petitioner will be subject to ongoing harm if the court grants the stay and delays the trial.

This opinion is the court's decision and order.

Dated: November 3, 2004

J.H.C.