Matter of Kobrick v New York State Div. of Hous. & Community Renewal
Annotate this CaseDecided on November 20, 2012
Supreme Court, New York County
In the Matter of the Application of Steven Kobrick and Gary Schwedock, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
against
New York State Division of Housing and Community Renewal and Sherwood 34 Associates, Respondents.
102267/12
Alexander W. Hunter Jr., J.
The application by respondent-intervenor by order to show cause for a temporary restraining order pursuant to C.P.L.R. § 5519 staying the underlying C.P.L.R. Article 78 proceeding pending the determination of the appeal by respondent-intervenor, Sherwood 34 Associates ("Sherwood"), of this court's order and judgment dated August 20, 2012, is denied. [*2]
In the underlying Article 78 proceeding, petitioners are challenging the determination issued by respondent New York State Division of Housing and Community Renewal ("DHCR") on January 27, 2012, which determined that the building located at 447 Tenth Avenue, New York, New York ("Building"), was not part of a Horizontal Multiple Dwelling ("HMD") and therefore, was not subject to the Rent Stabilization Law ("RSL") and Rent Stabilization Code ("RSC"). Previous related proceedings dealing with the status of the Building as an HMD span two decades and the detailed history does not need to be reiterated here.
Petitioners did not name Sherwood as a respondent in its petition in the underlying Article 78 proceeding. Sherwood was notified by both petitioners and respondent of the underlying Article 78 proceeding when it was commenced in March 2012, but waited several months to file a motion to intervene, refer, and dismiss by which time the statute of limitations for naming a necessary party had passed. In an order and judgment, dated August 20, 2012, this court (1) granted Sherwood's motion to intervene as a respondent in the underlying Article 78 proceeding; (2) found Sherwood's argument to refer the underlying Article 78 proceeding to Justice Lewis Bart Stone, J.S.C., to be without merit; and (3) denied the motion to dismiss petitioners' application for failure to timely name Sherwood as a necessary party. On September 6, 2012, Sherwood filed a notice of appeal from this court's order and judgment.
In the instant proceeding, Sherwood asserts that the underlying Article 78 proceeding should be stayed pending the determination of its appeal of this court's order, dated August 20, 2012, on the condition that Sherwood perfects its appeal for the January 2013 term. Sherwood argues that its motion should be granted because: (1) it has a strong likelihood of success on the merits of the appeal; (2) in light of the voluminous record, it would be a waste of judicial resources to review DHCR's determination, dated January 27, 2012, if the Appellate Division ultimately determines that the petition should have been dismissed; (3) this court should avoid requiring the parties to incur potentially unnecessary legal costs entailed in preparing their submissions for the underlying Article 78 proceeding; (4) the appeal would be rendered moot if the underlying Article 78 proceeding is resolved first; and (5) petitioners would not be prejudiced because they remain in occupancy of their apartment.
Petitioners oppose the motion and submit an affirmation stating that the instant motion for a stay should be denied because: (1) Sherwood fails to make any showing to justify a stay and (2) Sherwood does not have a meritorious appeal.
Sherwood is seeking a discretionary stay of enforcement pursuant to C.P.L.R. § 5519. A stay is effective to stall proceedings to enforce the order and judgment appealed, but not to enjoin a party from taking other action that may render an appeal moot. Such provisional injunctive [*3]relief should be sought in the form of a preliminary injunction or temporary restraining order pursuant to Article 63 of the C.P.L.R., or from the Appellate Division under C.P.L.R. § 5518.
A determination as to whether or not to grant a stay pending appeal is a discretionary one as "courts have the inherent power, and indeed responsibility, so essential to the proper administration of justice, to control their calendars and to supervise the course of litigation before them." See Grisi v. Shainswit, 119 AD2d 418 (1st Dept. 1986); Catalane v. Plaza 400 Owners Corp., 124 AD2d 478, 480 (1st Dept. 1986). A stay cannot be obtained absent a showing that prejudice or irreparable damage will result from a denial of the stay. See Robert Stigwood Org., Inc. v. Devon Co., 44 NY2d 922 (1978). Sherwood argues that it will incur legal costs and be forced to prepare its submissions for the underlying Article 78 proceeding if it is not stayed. This court finds that Sherwood will not suffer irreparable damage in doing the work necessary to file and serve an answer to the underlying Article 78 petition.
Accordingly, it is hereby,
ADJUDGED, that the order to show cause by respondent-intervenor is denied.
ORDERED that respondent-intervenor Sherwood Associates shall file and serve its amended answer upon petitioners and respondent DHCR within thirty days of service of a copy of this order with notice of entry.
Dated:November 20, 2012
ENTER:
________________________
J.S.C.
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