In this holdover proceeding petitioner moves for leave to take discovery, to deem an affidavit of service filed nunc pro tunc, to strike defenses, and to require the payment of use and occupancy, while respondent cross-moves for a stay of the proceeding. As set out below, the court grants the cross-motion, grants the motion in part and denies it in part, and marks the proceeding "off calendar." It may be restored either by stipulation submitted for "so ordering" or by motion seeking that relief.

The premises at issue is a loft unit in an Interim Multiple Dwelling ("IMD"). Petitioner is the landlord, respondent is an occupant, and the tenant of record, until his death on October 17, 2015, was Ross Von Burg.

By an application filed on or about November 12, 2015 at the New York City Loft Board ("Loft Board") respondent sought a determination of her claim that she is entitled to succeed to Von Burg's tenancy. The Loft Board referred the application to the City of New York's Office of Administrative Trials and Hearings ("OATH") for a conference and a hearing. The conference was held on March 22, 2016 and the hearing might be held as early as in June, 2016.

By a notice dated November 17, 2015 petitioner notified respondent that petitioner would begin legal proceedings to recover possession of the unit if she did not vacate by December 1, 2015. Petitioner began the instant proceeding by serving a petition and notice of petition dated December 3, 2015.

CPLR § 2201 provides that "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." It is not uncommon for this court and the Loft Board to have concurrent jurisdiction over tenancy disputes. See, e.g., Haddad v Cal Redmond Studio, 102 AD2d 730 (1st Dep't, 1984) and the cases cited therein. The Loft Board and this court have concurrent jurisdiction over respondent's claim to succession. Were this court to decline to grant a stay, parallel judicial and quasi-judicial proceedings, largely duplicative of each other, would proceed. Neither branch of government is so well-resourced that either can afford that luxury. The court holds that the instant proceeding is "a proper case" for granting a stay and grants respondent's cross-motion to the extent of staying the instant proceeding until the Loft Board has rendered a determination of respondent's application there.

Petitioner makes two arguments for being allowed to proceed here regardless of the administrative proceeding. One is that although petitioner can seek discovery at the Loft Board and/or OATH, petitioner can secure more and better discovery here. However, petitioner does not offer any particulars in support of this argument. Petitioner does not claim that the discovery it can obtain in the administrative process either fails to comport with due process of law or is otherwise legally insufficient. The court rejects this argument.

Petitioner also argues that it would be arbitrary and irrational for this court to stay this proceeding simply because the administrative process was commenced a few days earlier, i.e., on the ground that respondent won the race to the forum. The court disagrees. By granting a stay that allows the process that was commenced first to take precedence, the court serves the salutary purpose of eliminating one opportunity for forum-shopping, i.e., the opportunity for the party that is second-in-time to sit back, to compare the first forum with possible second forums and then, if the first forum is perceived as more advantageous, to do nothing and allow the proceeding to go [*2]ahead in the first forum. See also, Obstfeld v Roth, NYLJ, Mar. 1, 1989, at 25, col. 1. (App Term, 2nd & 11th Jud Dists.), where the court held that "[i]t was error for the court below to allow the counterclaim for rent overcharge where the evidence at trial revealed that there was a prior proceeding pending on the claim before the administrative agency."

Petitioner moves to deem filed nunc pro tunc the affidavit of service of the petition and notice of petition. Respondent consents thereto. Accordingly, the court grants petitioner's motion to this extent.

Petitioner also moves to strike respondent's second objection in point of law and respondent's first, third and fourth affirmative defenses. With respect to the second objection in point of law, the motion is denied as moot because at footnote 2 of the affirmation of Kozek dated February 3, 2016 respondent withdrew the objection.

The court denies petitioner's motion to the extent that it seeks to strike the first affirmative defense, which is to the effect that there is a proceeding pending elsewhere; however, the court grants a stay of the assertion of this defense, and this stay shall continue until the Loft Board renders a determination on the application that respondent filed there. Compare CPLR 3211(a)(4) which provides that a court need not dismiss when there is another action pending between the parties but instead the court "may make such order as justice requires * * * *"

The court declines to strike the third affirmative defense of retaliatory eviction. To grant this relief the court would have to find that petitioner had demonstrated as a matter of law that respondent will not be able to establish this defense. Petitioner's moving papers do not do that. At trial respondent may fail to prove this defense but she need not offer supporting evidence here. Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986).

The court grants petitioner's motion to strike the fourth defense of breach of the warranty of habitability. This defense may be asserted only by someone legally obliged to pay rent; respondent does not have that status. Needless to say, should there be a hearing to determine the rental value of the premises, and should petitioner offer as evidence thereof the rent reserved in the most recent lease, respondent shall be free to present evidence that the rent reserved should be discounted to reflect the allegedly less than habitable conditions at the premises.

Petitioner also moves for an order requiring the payment of use and occupancy. Respondent opposes the same on the ground that she is not a tenant and therefore has no obligation to pay rent. "However, we find error in the failure of Special Term to direct defendants to pay use and occupancy at the rate currently provided for as rent on each rental due [*3]date and, accordingly, modify the order to that extent [citations omitted]. Such a result, in our view, accommodates the competing interests of the parties in affording necessary and fair protection to both parties, to the [occupant] through possession, pending determination of the issue by the Loft Board, and, at the same time, to the landlord by requiring the [occupant] to pay the landlord for use and occupancy." Haddad, supra, at 731.

For better or worse, this court's authority to require such payment is no greater than that granted by RPAPL § 745. As a consequence, the court may require payment only of rent accrued and accruing since the proceeding was brought in December, 2015. It is uncontested that the monthly rent for the premises was $1,190.01. Accordingly, the court grants this part of petitioner's motion as follows: (a) within 10 days of service of a copy of this decision and order with notice of entry, respondent shall pay to petitioner $4,760.04, representing use and occupancy for the months of January, 2016 through April, 2016, (b) by the 10th of May, 2016 and the 10th of each month thereafter respondent shall pay to petitioner $1,190.01 as use and occupancy, and (c) such payments shall be without prejudice to any party's assertion, after the Loft Board's determination, that use and occupancy should have been fixed at a higher or lower amount.

The court will mail copies of the decision and order to the parties.