Recitation, as Required by CPLR 2219(A), of the Papers Considered in the Review of this Motion by Respondent Seeking A StayPapers NumberedNotice of Motion and Affidavits Annexed 1Answering Affidavits 2Replying Affidavits & Affirmation Annexed 3DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this summary holdover proceeding on or about August 8, 2018 seeking to recover possession of Apartment LB, located at 700 East 134th Street, Bronx, NY 10454, on the ground that Respondent’s month-to-month tenancy has expired. Both the notice of termination and the petition allege that the apartment is not subject to rent regulation by virtue of the fact that it was substantially rehabilitated. Specifically, the notice of termination provides that the building underwent a gut renovation in 2006, and that Respondents occupy the apartment as month-to-month tenants.The proceeding first appeared on the Court’s calendar on August 23, 2018. On that date, it was adjourned to October 9, 2018 for settlement or trial, and Respondent was referred to “LAS” short for The Legal Aid Society as per the notation on the court file. The file also reflects that this adjournment was made on consent of the parties. On October 9, 2018, the proceeding was once again adjourned to November 27, 2018 for settlement or trial, as a result of Respondent’s request for a further adjournment. The Court file reflects that the adjournment was requested by Respondent. On that date, upon application by Petitioner, the Court directed Respondent to pay use and occupancy for that month at the rate of $1,120 by October 23, 2018. On November 27, 2018, Respondent once again sought an adjournment of this proceeding. By order dated November 27, 2018, this Court granted Respondent’s application seeking to adjourn this proceeding, and the proceeding was then adjourned to December 14, 2018 for trial. On that date, the Court also issued an order directing Respondent to pay use and occupancy for the months of November 2018 and December 2018 as well as use and occupancy pendente lite by the 15th day of each month.Respondent now appears by counsel and seeks an order vacating the October 9, 2018 order directing Respondent to pay use and occupancy, and staying this proceeding until the regulatory status of the apartment is determined.In support of her motion, Respondent asserts that she is a member of the building’s Tenant Association, and that together with the Tenant’s Association they filed a Request for Administrative Review with the Division of Housing and Community Renewal (“DHCR” herein) sometime in May 2017 challenging Petitioner’s claim of substantial rehabilitation (DHCR Docket #EW610003 UC). Specifically, Respondent asserts that Petitioner’s claim that the building was substantially rehabilitated is false and that her apartment should be rent stabilized. In addition, Respondent asserts that she and her son receive federal assistance for their disabilities as well as shelter assistance from the Human Resources Administration.In opposition, Petitioner asserts that it is Petitioner and not Respondent that initiated the DHCR proceeding seeking confirmation of the substantial rehabilitation of the building, and argues that notwithstanding this filing this Court has jurisdiction over summary proceedings and may determine the issues raised in this proceeding. In addition, Petitioner contends that DHCR proceedings are not summary in nature, and that because the DHCR proceeding has been pending for a period of two years, a stay of this proceeding will only serve to further prejudice Petitioner. Moreover, Petitioner argues that it is entitled to post petition use and occupancy as well as use and occupancy pendente lite and notes the $27,730 due on the account through December 2018.In her reply, Respondent raises the impropriety of the Court’s order directing the payment of use and occupancy as well as the impropriety of the Court’s order directing counsel to accept Petitioner’s opposition papers which had been filed with the clerk of the Court prior to service on counsel, and left to be served on the counsel by the clerk of the Court on the return date of the motion. In addition, Respondent challenges the case law cited by Petitioner in support of its opposition as failing to show support for its position, and cites to the doctrine of primary jurisdiction in support of her request for a stay of this proceeding.At the outset, the Court notes that “CPLR 2004 vests the trial court with discretion to extend the time to perform any act…upon such terms as may be just and upon good cause”, and “in considering the motion, the court may properly consider such facts as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and if so, the presence or absence of an affidavit of merit” (Tewari v. Tsoutsouras, 75 NY2d 1, 550 NYS2d 572 [1989]; see also CPLR §2214).In permitting counsel to file the opposition papers on the return date of Respondent’s motion, the excuse proffered by counsel relating to the voluminous nature of Respondent’s motion and the timing of service on counsel was considered in permitting the late filing. In addition, to alleviate any prejudice, the Court also granted Respondent the opportunity to review the opposition papers and file reply papers.Turning to the merits of Respondent’s motion, 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. What is required for a stay is a showing that there is “complete identity of parties, causes of action and judgment sought”, and that “the decision in one action will determine all the questions in the other action, and also that the judgment on one trial will dispose of the controversy in both actions” (Hope’s Windows v. Albro Metal Products Corp., 93 AD2d 711, 460 NYS2d 580 [1st Dept 1983] [internal citation and quotation marks omitted]).A motion for a stay is addressed to the discretion of the Court, and under the particular facts of this case this Court will exercise its discretion and impose a stay. Although Petitioner asserts that Petitioner filed the DHCR proceeding and not Respondent, there is no question that a determination by DHCR will impact the outcome of this proceeding. Petitioner’s filing seeks confirmation of the substantial rehabilitation Petitioner claims was undertaken at the subject building. The petition alleges that the apartment is exempt from rent regulation, and that Respondents are month-to-month tenants. If through its determination DHCR finds that the subject building should be subject to rent regulation and that Respondent is the rent stabilized tenant of the subject apartment, the petition as it stands would fail to state a cause of action and dismissal would be required since a ground for eviction is required for eviction of a rent stabilized tenant (see 9 NYCRR §2204.1). Moreover, any prejudice to Petitioner is outweighed by the benefit to Respondent should DHCR make a decision favorable to her whereas if DCHR issues a decision favorable to Petitioner then it may proceed to trial and seek a judgment of possession.As to Respondent’s request that the Court vacate its October 9, 2018 order and its subsequent order directing the payment of use and occupancy, upon reconsideration the Court finds that the October 9, 2018 order was premature because even though it had been more than 30 days since the proceeding had been pending on the Court’s calendar, the first adjournment was made on consent and not chargeable to Respondent, and the clock did not begin to run until October 9, 2018 when Respondent sought to adjourn the proceeding (see RPAPL §745 [2][a]). Petitioner’s request for use and occupancy became ripe upon Respondent’s second request seeking to adjourn the proceeding on November 27, 2018. However, the Court’s order directed Respondent to pay use and occupancy at the rate of $1,120 per month, unaware that Respondent’s was receiving a shelter allowance from Public Assistance as well as federal assistance.Based on the foregoing, Respondent’s motion is GRANTED to the extent that the proceeding is hereby marked off calendar pending a determination by DHCR and may be restored either by motion or stipulation between the parties. In addition, Respondent is directed to pay use and occupancy pendente lite at the rate of $277, the amount of her shelter allowance, by the last day of each month beginning in March 2019. In addition, Respondent is directed to pay all post-petition use and occupancy due which totals $1,939, calculated at the rate of $277 from the date of service of the notice of petition and petition (August 2018 through February 2019) no later than February 28, 2019 (see RPAPL §745 [2][a] and [2][b]).This constitutes the decision and order of the Court.Dated: February 8, 2019
