In this superintendent holdover proceeding, Respondents move for a stay pursuant to CPLR 2201 pending a final determination in a related and previously filed federal unfair labor practices and discriminatory termination case pending in the United States District Court, Eastern District of New York, Cletus "Robin" Clarke v Denali Property Group LLC, Atlantic Walk LLC, Atlantic Walk Vestry LLC, 5101 Snyder Avenue Assn, et al, CV 10-5155. Alternatively, respondents seek an order deeming their attached answer served and filed.

It appears that both parties correctly summarize the case law in regard to CPLR 2201 stays. CPLR 2201, available to Housing Court pursuant to Civil Court Act §212 provides that:

Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.

Housing Court has frequently exercised its power to grant stays where an issue essential to resolution of the summary proceeding is pending in another forum, and such exercises of discretion have been repeatedly approved by the appellate courts. In addition to granting stays where a related issue is pending before an administrative agency, where the issues in a summary proceeding are subject to resolution in another court, Housing Court judges have also granted stays pending a determination in the other forum. For example, in Twenty Seven Naught One Assoc v Tirado, NYLJ, November 29, 1995, p 28, col 1 (Civ Ct, Bx Co), a stay was granted pending an action brought by the tenant under the Federal Fair Housing Act ("the court sees no reason why" stays may not be granted pending court actions as well as administrative proceedings). The court explained that such a stay was appropriate where the Housing Court has no jurisdiction to decide the issue in question, and the disposition of the other action will dispose of the central issue in the holdover proceeding. See also, 200 Clinton Assoc v Aybar, NYLJ, April 7, 1993, p 27, col 5 (Civ Ct, Kings Co); 302 Eastern Corp v Pack, NYLJ, June 20, 2001, p [*2]20, col 5 (Civ Ct, Kings Co).

Respondent's Federal action includes a claim of improper termination of his employment as superintendent. Respondent correctly points out that stays pending a determination of a labor dispute have been granted in several Housing Court cases. See, Maguire v Ardea Realty Corp, 279 AD 904 (1st Dept 1952); 60 Bleeker street Owners v Brzizinski, NYLJ, November 20, 2001, p 22, col 6 (Civ Ct, NY Co); Romag Realty v Saunders, 77 Misc 2d 11 (Civ Ct, NY Co 1974 (similar to the instant proceeding, wherein a superintendent holdover proceeding was stayed pending the outcome of a NYSLRB determination of an unlawful termination complaint).By the same token, petitioner is correct that a stay would not be proper if an issue essential to the resolution of a Housing Court proceeding is not pending in another forum. In this

regard, petitioner asserts:

. . . there is no issue essential to the resolution of this proceeding that is sub judice in the Federal Action. On the contrary, a plain reading of the Complaint in the Federal Action shows that Respondent does not seek to be reinstated to his former position as superintendent - the sole means by which he might arguably claim a right to continued possession of the Premises. . . . Respondent does not seek relief in the Federal Action (or anywhere else) predicated on any allegation that he was wrongfully terminated. As such, Respondent is unable to establish how the claims he has asserted in the Federal Action implicate the essence of the claims before this Court: that Respondent's occujpancy of the Premises is a condition of his continued employment, which has been terminated.

If petitioner is in fact correct in this assertion, then respondent's position that his "federal claims are inextricably intertwined with his claims in this proceeding to a continued right to possession of the subject premises" is incorrect and the Court would be constrained to deny respondent's motion for a stay pending the determination of the Federal Action.

However, the Court finds that based upon the documentation presented as to his claims and requests for relief in his Federal Action, petitioner's above stated assertion is incorrect. Respondent's Federal Complaint, appended as Exhibit E, cites in paragraph 75 the provision of New York Labor Law §215 affording the Federal Court jurisdiction "to order all appropriate relief, including rehiring or reinstatement of the employee to his former position . . . " Pursuant thereto, respondent's sixth claim for relief at paragraph 77 states:

Due to Defendants' illegal retaliation, Plaintiff is entitled to recover from Defendants unpaid wages, unpaid overtime compensation, damages for unreasonably delayed payment of wages, back pay, front pay, rehiring and/or reinstatement, and reasonable attorneys' fees, costs and disbursements of the action, and liquidated damages, pursuant to New York Labor Law §663(1).

(Emphasis added.)

Moreover, as respondent points out, while the "Prayer for Relief" in his Federal Complaint does not specifically enumerate "rehiring and/or reinstatement," it does reference "an award of damages arising out of the non-payment of wages," and as the complaint and law specifiy, one of the statutory "damages" available to the improperly terminated employee under [*3]New York Labor Law is rehiring or reinstatement. The same is true of the Amended Federal Collective Action Complaint appended as Exhibit A to the reply affirmation.

Thus, it appears that the claims in this Housing Court proceeding and the claims in the Federal wage/discrimination case are sufficiently intertwined in that the Federal case seeks respondent's restoration to employment and the holdover proceeding seeks possession of the apartment which respondent occupies as an incident to that employment. As the Housing Court has no injunctive power to grant reinstatement, it is more appropriate to allow the improper termination/restoration claims to be heard in Federal Court and therefore a stay pending the outcome of the Federal case is appropriate.

Pursuant to CPLR 2201, a motion for a stay of proceedings is primarily addressed to the discretion of the Court. Such discretion must be exercised sparingly and only where there has been an affirmative showing that the equities involved are strong and apparent. Peerce v Peerce, 97 AD2d 718 (1983). This is the case here. Respondent is correct that the balance of equities favors respondent, since if a stay is not granted by this Court, he and his family, including three minor children, may very well be irreparably harmed by being rendered homeless before his Federal claims, including rehiring or reinstatement, are determined.

As a result, respondent's motion is granted and this proceeding is stayed pending the outcome of respondent's related complaint previously filed in the United States District Court, Eastern District of New York.

This constitutes the decision and order of the Court.

Dated: Brooklyn, New York

May 10, 2011

________________________

Marc Finkelstein

JHC