LLC v. JOHN DOE JANE DOE (2025)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion for dismissal or, in the alternative, for a stay; and petitioner's motion for summary judgment and a stay

NYSCEF Doc Nos.: 8 — 29.

Petitioner commenced this licensee holdover proceeding seeking to recover possession of rent-stabilized subject premises after the death of the tenant of record, and after expiration of the most recent rent-stabilized lease renewal held by the tenant of record. Following issuance of the predicate Ten (10) Day Notice to Quit, but prior to the commencement of this proceeding, respondent-occupant Schypior (hereinafter "respondent"), filed a Division of Housing and Community Renewal (hereinafter "DHCR") complaint of owner's failure to renew the lease, alleging, in sum and substance, that respondent is entitled to a lease renewal as a successor-tenant based on a Braschi-type relationship with the tenant of record. Respondent now moves (mot. seq. 01) for dismissal of this licensee holdover on the basis of the pending DHCR complaint, or, in the alternative, for a stay of this proceeding pending resolution of the DHCR complaint. Petitioner cross-moves (mot. seq. 02) for a stay of the DHCR complaint, and for summary judgment.

DHCR Proceeding and CPLR § 2201 Stay

In support of its motion for dismissal, respondent argues that the filing of the DHCR complaint deprived this Court of jurisdiction to adjudicate this controversy. However, it is well-established that the Housing Court and DHCR jurisdiction is to hear succession claims is concurrent (Matter of 865 First LLC v. New York State Div. of Hous. & Community Renewal, 210 AD3d 456, 457[1st Dept 2022]; Matter of RSL 53-55 E. 95th LLC v New York State Div. of Hous. & Community Renewal, 137 AD3d 572, 573 [1st Dept 2016]; Cox v J.D. Realty Assoc., 217 AD2d 179, 181, 637 NYS2d 27 [1st Dept 1995]).

While Housing Court and DHCR are endowed with concurrent jurisdiction to decide issues of succession, under CPLR § 2201 courts also possess the discretion to stay their own pending proceedings. Whether to issue a stay pursuant to CPLR § 2201 is relegated to the discretion of the trial court (952 Assoc., LLC v. Palmer, 52 AD3d 236, 236 [1st Dept 1980], citing Britt v International Bus Servs., 255 AD2d 143, 144 [1998]; Research Corp. v. Singer-General Precision, Inc., 36 AD2d 987, 988 [3d Dept 1971]). In evaluating whether to exercise such discretion, examination of several factors is warranted: whether outcome of the other proceeding is dispositive of the controversy in the proceeding for which the stay is contemplated; which proceeding was first commenced; whether exercising the stay will help avoid inconsistent outcomes in different forums; best use of judicial resources; and finally, fairness and justice considerations. No factor has emerged as entirely dispositive of this inquiry: rather, totality of specific circumstances surrounding the proceeding and the request for a stay dictates whether a stay is appropriate (Uptown Healthcare Mgt, Inc. v. Rivkin Radler LLP, 116 AD3d 631 [1st Dept 2014] (even where a complete identity of parties was absent, common dispositive questions of law and fact, and efficient allocation of judicial resources warranted a stay); Green v Glenbriar Co., 131 AD2d 363 [1st Dept 1987] accord Capolino v. Bua, 63 AD3d 1092, 1093 [2d Dept 2009] (stay of a holdover warranted proceeding pending the outcome of a Supreme Court action between the same parties seeking relevant relief unavailable in a summary eviction proceeding); Amoo v Eastlake Realty Co., 133 AD2d 657 [2d Dept 1987] (stay of a summary holdover proceeding pending resolution of a Supreme Court action not warranted where both forums could fully address relief sought); Galan Industries, Inc. v Loizeaux, 134 Misc 2d 641 [Civ Ct NY Cty 1986] (stay of an eviction proceeding pending Loft Board determination concerning sale of apartment's fixtures warranted, as the issue bearing on the ultimate disposition of the holdover was within particular expertise of the of Loft Board); Solow v. Wellner, 142 Misc 2d 383, 383 [Civ Ct NY Cty 1989] (stay of additional nonpayment proceedings between the parties appropriate in consideration of efficiency and judicial resources where a nonpayment was already pending between petitioner and multiple tenants in the building); Newman v Sirkin, 153 Misc 2d 864 [Civ Ct NY Cty 1992] (stay of a holdover proceeding pending resolution of a DHCR complaint warranted where DHCR proceeding was commenced before the holdover proceeding, would resolve status of respondent as licensee or squatter, and determine whether landlord had right to possession, and respondent agreed to payment of use and occupancy); Silver Towers Owners Corp. v Da Costa, 2017 NY Slip Op 50784(U), 55 Misc 3d 1224 [Civ Ct Queens Cty 2017] (stay of a summary eviction proceeding pending DHCR complaint not warranted where both forums had concurrent jurisdiction to adjudicate the issue, and the DHCR complaint was filed after the commencement of the eviction proceeding); 5201 Snyder Ave. Assocs. LP v Clarke, 32 Misc 3d 1203[A] [Cit Ct NY Cty 2011] (stay of a superintendent holdover proceeding pending resolution of a wrongful termination action appropriate, as outcome of the wrongful termination action bore directly on the landlord's ability to bring such a holdover); INK 954 LLC v. Mann, 2023 NY Slip Op 51437(U), 81 Misc 3d 1223(A) (stay of a lease expiration holdover proceeding pending resolution of an overcharge/improper deregulation complaint with DHCR denied where respondents did not show likelihood of success on the merits, the DHCR proceeding was likely to be protracted, and Housing Court had jurisdiction to adjudicate the same issues as those raised before the agency).

The factors mitigating in favor of a stay of this proceeding are that a disposition by DHCR with respect to respondent's entitlement to succession will be determinative of whether petitioner can prevail in this licensee holdover proceeding; as well as the fact that respondent filed the DHCR complaint prior to the commencement of this proceeding. Petitioner correctly points out that the DHCR complaint was filed on March 14, 2025 (NYSCEF Doc Nos. 12, 14), after issuance of the Ten (10) Day Notice to Quit, and just two weeks prior to the commencement of this holdover proceeding on March 31, 2025. Petitioner argues that this timing evinces respondent's intent to utilize the DHCR complaint as a mere delay of this proceeding, rather than as a genuine choice of forum for resolution of his succession claim. However, respondent points out that he was not in the position to file a failure to renew the lease complaint with DHCR until after the expiration of the most recent lease renewal held by the tenant of record, which did not occur until February 28, 2025 (NYSCEF Doc Nos 1, 22). Respondent also represents that he previously requested of petitioner to be recognized as a successor-tenant on or about April 29, 2024, shortly after the tenant of record had died.

Whether or not respondent's filing of the DHCR complaint was strategic, that complaint appears to be in its nascent stages. There is no indication that a decision by the agency will be forthcoming in the timeframe that a typical summary licensee holdover proceeding takes to reach a disposition. Respondent has not formally offered to make ongoing use and occupancy payments during the pendency of the administrative process, to mitigate any prejudice which the length of that process may occasion petitioner. While under CPLR § 2201 there is a plausible argument that the Court may sua sponte condition a stay on the payment of use and occupancy, it is unclear whether without either respondent's consent or a proper RPAPL § 745 motion such order would not conflict with the spirit and intent of that statute.

There is no question that both Housing Court and DHCR are in the position to decide the same contested issue of succession, therefore, respondent has the same remedy potentially available in this proceeding as in the one before the agency. While judicial economy may favor a stay of this holdover during the pendency of the preexisting administrative proceeding, the Court cannot ignore practical implications of the potential length of that stay for petitioner. Respondent will not face the same prejudice if the instant licensee holdover proceeds to its natural resolution, and respondent's claims are duly adjudicated in this forum. Based on the foregoing, respondent's request for a stay is denied.

Petitioner also moves for a stay pursuant to CPLR § 2201, however, petitioner asks this Court to stay not its own proceeding, but rather the DHCR proceeding commenced by respondent. Petitioner does not supply any statutory or appellate authority indicating that this Court has jurisdiction to stay a pending DHCR proceeding under CPLR § 2201. Accordingly, petitioner's motion for a stay of the DHCR proceeding is denied.

Summary Judgment

Petitioner cross-moves for summary judgment on its claims for possession of the subject premises and a warrant of eviction. The crux of petitioner's argument is that respondent cannot establish requisite co-residency with the tenant of record as a matter of law, since respondent is present in New York pursuant to a B-1/B-2 visa, which is incompatible with permanent residence in New York. Specifically, petitioner cites respondent's visa waiver authorization, dated September 2020, which reflects Germany as respondent's residential address. Petitioner argues that the intersection of immigration regulations and primary residence caselaw does not permit one to both hold a B-1/B-2 visa and maintain primary residence in New York City. Petitioner relies on Katz Park Ave. Corp. v. Jagger, 11 NY3d 314, 317 [2008] for this proposition.

In Jagger, the Court of Appeals held that

"at least absent some unusual circumstance, a primary residence in New York and a B-2 visa are logically incompatible. No such unusual circumstance exists here. Perhaps there are rare cases in which a tenant could show that her principal dwelling place for immigration purposes is in one place, and her primary residence for rent regulation purposes in another, but defendant has not even tried to make such a showing" (Id., at 318).

The Court of Appeals did not opine on the type of "unusual circumstances" which could reconcile a B-2 visa status and primary residence in New York. The Court also explicitly referenced, but declined to examine, a potential circumstance involving a visa holder who is out of compliance with the relevant visa residential requirements.

In Tres Realty LLC v Ta-Wei Yu, 63 Misc 3d 28 [App Term 1st Dept 2019] the Court considered what circumstances may reconcile a non-permanent resident visa status and the question of primary residency for the purpose of succession. While distinguishing the F-1 visa at issue in that proceeding and the B-2 visa at issue in Jagger, the Court highlighted the following factors: the length of permitted entry into the country (temporary, short term stays versus stays of prolonged duration); whether in the time residing in New York under the visa status the visa holder has made a change of plans with respect to residency and other "long term commitment" connecting them to New York City; finally, the Court specifically referenced the possibility that a visa holder "may, while living in New York for an extended period, get married, start a family, or reside with someone in a relationship characterized by emotional and financial commitment and interdependence" (Id., at 38). The primary distinction drawn by the Yu Court between the F-1 visa and the B-2 visa is the transient nature of the latter. However, at issue in the instant proceeding is not a temporary tourist stay for the purposes of a vacation or a short business trip. It is undisputed that respondent is a holder of a visa status which was initially granted in the year 2020 and remains effective through the year 2032, over ten years. While not conceded by petitioner, respondent makes a colorable representation of his residence at the subject premises since the year 2020 through the present, now approximately five years. These timeframes represent anything but a temporary or short-term residence which may characterize other B-1/B-2 visa stays, instead bearing a resemblance to the circumstances considered in Tres Realty LLC v Ta-Wei Yu.

Summary judgment is a drastic remedy that deprives litigants of their day in court, and "should only be employed when there is no doubt as to the absence of triable issues" (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). Failure to make a showing that no triable issues of fact remain necessitates denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). On a motion for summary judgment the court's role is to ascertain whether issues of fact exist, not to resolve them (S. J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]).

Here, the facts presented leave wide open the question of whether respondent's specific situation constitutes the type of "unusual circumstance" envisioned by the Jagger Court which may ultimately entitle respondent to succeed to the subject premises. Respondent has certainly presented a reasonable argument that such determination is warranted under the Yu framework; petitioner also falls short of conclusively disproving other elements of respondent's succession claim.

Accordingly, it is ORDERED that respondent's motion (mot. seq. 01) is denied in its entirety; petitioner's cross-motion (mot. seq. 02) is denied in its entirety. Proceeding is adjourned to December 18, 2025 at 9:30am in Part C, Room 823 for a pre-trial conference. This constitutes the decision and order of this court.

Dated: September 29, 2025

New York, New York

Yekaterina Blinova, Judge

Civil Court, Housing Part

Yekaterina Blinova, J.