Silver Towers Owners Corp. v Da Costa

[*1] Silver Towers Owners Corp. v Da Costa 2017 NY Slip Op 50784(U) Decided on June 12, 2017 Civil Court Of The City Of New York, Queens County Rodriguez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2017
Civil Court of the City of New York, Queens County

Silver Towers Owners Corp., Petitioner,

against

Mateus Da Costa, Respondents (Proprietary Lessee), MATIAS RIVERO Respondents (Occupant).



81885/16



Attorney for petitioner Kelsey O'Donnell of Kaufman Friedman Plotnicki & Grun, LLP

Attorney for respondent Clyde Jay Eisman of the Eisman Law Firm, P.C.
Jose Rodriguez, J.

Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss.

Papers/Numbered

Petition and Notice of Petition 1

Order to Show Cause 2

Affirmation in Opposition 3

Affirmation in Reply 4

DECISION/ORDER

Upon the foregoing cited papers, the Decision/Order of this Motion is as follows:

Petitioner commenced in the instant summary holdover proceeding by filing of the Notice of Petition and Petition on December 29, 2016. The Petition alleges that the subject premises, 125-10 Queens Boulevard, Apartment 2304, Kew Gardens, New York, is a cooperative apartment and that respondent Da Costa is the proprietary lessor. The Petition further alleges that respondent violated the proprietary lease as well as house rules by harboring a dog in the subject premises. Respondent Da Costa lives in the subject premises with his husband, respondent Rivero, and alleges that the dog is a therapy animal for respondent Rivero. Respondent Rivero states that he suffers from anxiety and depression and that the dog is necessary for maintaining his well-being.

Respondent Da Costa now moves this court to stay the instant proceeding pursuant to CPLR § 2201 pending a determination of the Department of Human Rights (hereinafter "DHR"), [*2]filed on March 20, 2017. Respondent Da Costa alleges that despite submission of letters from mental health professionals to petitioner, petitioner nevertheless failed to accommodate respondent Rivero's disability. As a result of the alleged failure to accommodate, respondent Rivero commenced the Human Rights proceeding, case number 10186957. Respondent Da Costa argues that a stay should be granted in the instant action because the DHR regularly deals with these types of cases and that it has a more specialized knowledge of such cases.

Petitioner opposes the motion, arguing that the DHR does not have any special authority or necessary expertise that would justify the stay. Petitioner also argues that respondents have failed to demonstrate that they would be prejudiced if a stay was not granted. Finally, petitioner asserts that respondent's claims can be fully litigated in housing court.

CPLR § 2201 allows for a court to "stay its own proceedings in a proper case upon such terms as may be just." 170 W. 85th St. HDFC v. Jones, 176 Misc 2d 262, 265, 673 N.Y.S.2d 830 (1998). When considering to grant a stay, the court will examine certain factors. First, if a more complete determination can be made in the earlier of the two actions. Id. at 265, citing to El Greco Inc. v. Cohn, 139 AD2d 615 (1988). Second, whether the issues are similar enough such that a stay is necessary to avoid "inconsistent adjudications, duplication of proof, and the potential waste of judicial resources." Id. Furthermore, a stay is inherently discretionary and may be granted if the companion action requires the necessary expertise of the other governmental body. Eli Haddad Corp v. Redmond Studio, 102 AD2d 730, 476 N.Y.S.2d 864 (1984). In some cases a stay will be granted if it would be inequitable to allow a party to obtain a judgment. 176 W. 87th St. Equities v. Amador, 151 Misc 2d 234, 573 N.Y.S.2d 221 (1991). However, a stay generally will be denied if the relief sought can be granted in the court in which the stay is sought. Green 440 Ninth LLC v. Duane Reade, 10 Misc 3d 75, 809 N.Y.S.2d 756 (2005). See also DiStasio v. DiStasio, 47 Misc 3d 144(A), 16 N.Y.S.3d 791 (2015); Scheff v. 230 East 73rd Owners Corp., 203 AD2d 151, 610 N.Y.S.2d 252 (1994); Amoo v. Eastlake Realty Co., 133 AD2d 657, 519 N.Y.S.2d 831 (1987); Lun Far Co. v. Aylesbury Assoc., 40 AD2d 794, 338 N.Y.S.2d 84 (1972).

In certain circumstances, courts have granted stays in summary holdover proceedings involving lease violations of a "no pet" clause pending a DHR decision. See East River Housing Corp. v. Aaron, 40 Misc 3d 1213(A), 977 N.Y.S.2d 666 (2013) (holdover proceeding against shareholder for harboring dog stayed because HUD requested a stay); 40 West 75th Street LLC v. Horowitz, 25 Misc 3d 1230(A); 906 N.Y.S.2d 772 (2009) (holdover proceeding against tenant for harboring dog stayed because landlord did not oppose stay). However, the First Department, Appellate Term in 3720 Homes Inc. v. Hyman, 30 Misc 3d 79, 918 N.Y.S.2d 814 (2010), found that the lower civil court did not abuse its discretion when it denied tenants' application to stay the summary proceeding pending a resolution of a housing discrimination complaint that was "contemporaneously filed by tenants with the State Division of Human Rights." Id. at 82. In rendering its decision, the Appellate Term cited the factors enumerated in Gallo v. Mayer, 50 Misc 2d 385 (1966), which for the most part mirror the factors set forth in El Greco, supra.

In the instant case, this court finds that a stay is not warranted. While the DHR and the civil court have concurrent jurisdiction, the court notes that the instant action precedes the DHR action. Furthermore, the relief sought by both parties can be obtained in the instant court. Additionally, housing court has the necessary expertise to determine whether or not respondents have proven the necessity of the dog-at-issue for respondent Rivero's use and enjoyment of the [*3]subject premises.

Accordingly, respondent's Order to Show Cause is denied. This matter will appear on the Housing Part B calendar for settlement or trial on July 31, 2017 at 9:30 A.M.

The foregoing constitutes the decision and order of the court.

Dated: June 12, 2017

Queens, New York

_____________________________

Hon. José Rodriguez

Judge, Housing Part