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3165 LLC v. “John Doe” and “Jane Doe”, Respondents-Undertenants. (2019)

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Civil Court, City of New York.

3165 LLC, Petitioner, v. Luis LOPEZ, Respondent-Tenant, “John Doe” and “Jane Doe”, Respondents-Undertenants.


Decided: March 05, 2019

The Legal Aid Society, Bronx Neighborhood Office, 260 E. 161st Street, 8th Floor, Bronx, NY 10451 & David L. Moss & Associates, 370 Lexington Avenue, Suite 2102, New York, NY 10017

Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion and Affidavits Annexed 1,2

Order to Show Cause and Affidavits Annexed

Answering Affidavits 3

Replying Affidavits 4

Exhibits Respondent's A-F, Petitioner's A-B 5,6


After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:


In this summary holdover proceeding 3165 LLC (“Petitioner”) seeks possession of Apt. C at 3165 Decatur Avenue, Bronx NY (“Premises”) based upon allegations that Luis Lopez' (“Respondent”) right to occupy the premises as an incident of employment has been terminated. Respondent now moves for a stay of this proceeding pursuant to CPLR § 2201 pending final determination of his Labor Law action in Federal Court, Southern District of New York (“Labor Law action”).


CPLR § 2201 states, “except where otherwise prescribed by law, 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.” Granting such a stay is within the sound discretion of the court. (Concord Associates, L.P. v. EPT Concord, LLC, 101 AD3d 1574, 1575, 957 NYS2d 509 [3rd Dept 2012]). There is, however, a strong rule against staying a summary proceeding. (Scheff v. 230 E. 73rd Owners Corp., 203 AD2d 151, 152, 610 NYS2d 252 [1st Dept 1994]; Hillside Park 168, LLC v. Hossain, 61 Misc 3d 132(A), 2018 NY Slip Op 51451(u) [App Term 2nd Dept 2018]). The question before this court is whether the facts and circumstances of this matter require an exercise of the court's discretion in granting a stay of this matter.

Since reinstatement to his former position is a possible outcome of Labor Law action, Respondent argues this proceeding must be stayed. However, the court must look beyond Respondent's best-case scenario  1 and weigh the prejudice of a stay to both parties and, in this instance, to the non-party tenants of the subject building. The court must also be mindful that this is a summary proceeding. (See Lun Far Co., Inc. v. Aylesbury Associates, 40 AD2d 794, 338 NYS2d 84 [1st Dept 1972] (recognizing prompt and expeditious nature of summary proceeding)).

3165 Decatur Avenue is a 61 Unit rent stabilized building.2 New York State Multiple Dwelling Law § 83 requires a “janitor or housekeeper or some other person responsible on behalf of the owner who shall reside in said dwelling” or within 200 feet when there are 13 or more units. The Housing Maintenance Code (“HMC”) requires the owner of multiple dwellings of 9 or more units to provide a janitor. Such janitor “shall reside in or within a distance of one block or two hundred feet from the dwelling. (HMC § 27-2053). On premises superintendents are expected to provide daily maintenance needs and respond to emergencies.

Petitioner argues that it will be prejudiced by any stay. Petitioner notes that it is entitled to a quick disposition in this summary proceeding and notes that the other action could take an indefinite amount of time. Respondent acknowledges that the Labor Law action is in the discovery phase  3 . At oral argument Petitioner's counsel states there are no empty apartments where they could put another superintendent.

The court first notes that Respondent herein appears to be an employee at will  4 and in New York, “an employee who does not work under an agreement for a definite term of employment is an at-will employee who may be discharged at any time with or without cause.” (Barcellos v. Robbins, 50 AD3d 934, 935, 858 NYS2d 658 [2nd Dept 2008]; Marino v. Vunk, 39 Ad3d 339, 835 NYS2s 47 [1st Dept 2007] ).

Under the unique circumstances of this case, a stay is not appropriate. Reinstatement, while possible, is not likely. It is common knowledge that the building superintendent is an agent of the owner. In fact, the superintendent is known to be and is expected by his superiors to be their “eyes and ears” at the premises. A superintendent knowing of activity at the building is treated as if the owner has the same knowledge. (See e.g., Administrative Code of the City of New York § 27-2001.1(b)). Superintendents are expected to act on and apprise the owner of emergencies, to report illegal activity, and perform normal maintenance. In many instances, they collect rent and give receipts as required. In short, superintendents interact with building residents repeatedly. Superintendents act as ambassadors, of sorts, for a building's owner or board.5 Reinstatement is not appropriate where plaintiff has “frequent personal contacts with defendant's clients, with plaintiff acting as defendant's representative.” (EEOC v. Kallir, Phillips, Ross, Inc., 420 F Supp 919, 926-927 [SD NY 1976], aff'd mem. 559 F2d 1203 [2d Cir), cert. denied, 434 U.S. 920, 98 S Ct 395, 54 L Ed 2d 277 [1977]). Given the likely bitterness between the parties, reinstating Mr. Lopez to a position where he would have to act as the owner's representative is not in the best interest of either party. (Hayes v. McIntosh, 604 F Supp 10 [ND Ind 1984]). There is no national policy to reinstate every employee. (Goldberg v. Bama Manufacturing Corp., 302 F2d 152, 156 [5th Cir 1962]). Additionally, Respondent does not present any case with where reinstatement of a superintendent or someone similarly situated was ultimately ordered. On the other hand, Petitioner faces real prejudice if an indefinite stay were granted.

As such, the motion for a stay of this proceeding is denied.


Accordingly, it is hereby

ORDERED, the motion for a stay of this proceeding pursuant CPLR § 2201 is denied in all respects.

ORDERED, Respondent shall serve and file an answer by March 21, 2019.

The proceeding is adjourned to April 12, 2019, 9:30 A.M., Part F, Room 320 at which time the matter will be referred to Part X for trial.



1.   The District Court complaint (Resp's exhibit C ¶¶ 103, 108) seeks “compensatory damages, reinstatement and/or front pay in lieu of reinstatement ”

2.   The court searched the HPD Online website,, to confirm the number of units as stated in Mr. Lopez' January 11, 2019 affidavit.

3.   ¶ 15 of Respondent's Attorney's January 11, 2019 Affirmation.

4.   None of the pleadings in this case or the Labor Law action refer to a contract or any other employment agreement. Respondent's counsel did not dispute Mr. Lopez is an at-will employee at oral argument.

5.   Jay Romano, YOUR HOME; The Super: Handyman, Ambassador, New York Times, January 19, 2003,

Shorab Ibrahim, J.

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