Opinion
SP2808/04.
Decided September 13, 2004.
NATURE OF PROCEEDINGS
Petitioner Reelty Group of Long Island brings the summary proceeding to evict the respondent Freddy Acosta and his family from the basement apartment located at 35 Elk Street, Hempstead, New York. Respondent is employed by the petitioner as the superintendent of the building also located at 35 Elk Street, Hempstead, New York. Respondent has worked for petitioner or its predecessor GRJH, Inc., for at least 14 years as a superintendent.
Mr. Acosta is a member of Local 808 (affiliated with the International Brotherhood of Teamsters). Petitioner's predecessor Elk Street LLC had entered into a collective bargaining (effective October 1, 2003) agreement which covered wages and conditions of employment. Article XXVII — Employee's Apartments states:
Section 1 — a) In the event that an employee is laid-off or terminated for cause and is occupying an apartment owned or managed by the Employer, he must vacate said apartment, or pay rent equal to other tenants in same building after thirty (30) days of his or her notice of said lay-off or termination. Nonetheless, the employee shall be accorded the right to maintain a grievance as specified in Article XXII herein.
b) In the event of "a" above, then pending the employee's vacating of said apartment, it is agreed that such rental and utility obligations as the employee may have will be complied with, and the Employer may maintain proceedings for summary possession in the event of non compliance with said obligation.
Petitioner's predecessor attempted to terminate the respondent for cause in December of 2003. The matter went before the American Arbitration Association, but was settled by a stipulation which transferred respondent's place of employment from 621 Front Street, Hempstead, New York to 15-35 Elk Street, Hempstead, New York, as of February 15, 2004.
Thereafter, petitioner's predecessor, GRJH, Inc., again sought to terminate respondent for cause based upon respondent's alleged failure to properly perform his duties which is detailed in the termination letter of April 28, 2004. Local 808 issued a rebuttal letter, dated April 30, 2004, denying the grounds for cause. This matter has been set down for a hearing before the American Arbitration Association to determine the issues as per the collective bargaining agreement. The hearing is scheduled for October, 2004.
Respondent moves to dismiss the petition or to stay the summary proceedings pending the determination by the American Arbitration Association. Petitioner opposes the application for a stay, arguing that respondent was terminated "for good cause and that its decision to terminate respondent will be upheld in the appeal process." Petitioner further contends that "there is no basis whatsoever, for respondent to remain, rent-free in the subject premises, while he is suspended from his employment, and waiting for his appeal."
Based upon a careful review of the collective bargaining agreement entered into between the parties, the respondent loses his right to maintain the rent-free apartment if he is terminated for cause. Petitioner contends that respondent was terminated for cause, but Local 808 and respondent present a contrary point of view. The collective bargaining agreement provides that this dispute shall be settled by the American Arbitration Association (AAA) whose decision "shall be final and binding on the parties," see Article XXII — Grievance Procedure.
Under these circumstances, a stay is warranted pending the decision of the American Arbitration Association. A case on point is Silver-Ruth Inc. v. Rafferty, 42 Misc. 2d 926, 249 N.Y.S.2d 447 (Dist.Ct. Nassau Co. 1964), wherein the petitioner sought to evict the respondent superintendent whose employment petitioner had terminated. Respondent contested the discharge and sought reinstatement and back pay from the New York State Labor Relations Board. The Court granted the stay because:
The incidental nature of a stay as contrasted with an injunction is stated in Matter of Cantelli v. Town Board of Oyster Bay, 30 Misc. 2d 39, 219 N.Y.S.2d 503. Unless section 212 of the Uniform District Court Act is construed to grant such incidental jurisdiction, respondent must be relegated to the Supreme Court for relief which will probably be granted as a routine matter. It is therefore the opinion of the court that section 212 of the Uniform District Court Act empowers this court to stay the proceeding, pending disposition of the unfair labor practice proceedings.
Likewise, in Romag Realty Corp. v. Saunders, 77 Misc. 2d 11, 352 N.Y.S.2d 568 (Civ.Ct. N.Y. Ct. 1974), the court stayed the summary proceedings to evict the respondent employee pending the determination of the State Labor Relations Board of unfair labor practices arising because of his membership in a union.
Respondent cites the case of Milevoi v. Alamilla, 107 Misc. 2d 493, 435 N.Y.S.2d 246 (Civ.Ct. Queens Ct. 1981) for the proposition that the tenant should pay rent while the warrant of eviction is stayed pending the determination of the State Labor Relations Board. This Court will not follow this case, and order rent or use and occupancy to be paid during the stay of these proceedings. The petition indicates that a basement apartment is being rented to the respondent. Respondent raises the serious question of whether the basement apartment is being occupied legally in accordance with the local municipal code and cites the Town of Hempstead Code Section 81 which prohibits rental of basement or cellar apartments. The subject premises is located within the Village of Hempstead and is thus subject to the zoning code of the Village and not the Town. However, the result, is not different. If the basement apartment is not being rented legally in accordance with the local zoning code, then rent or use and occupancy will not be awarded. See, Cater v. Saunders, 2002 WL 31207219, 2002 N.Y. Slip Op. 50400 (u), (N.Y. Dist. Ct. 2002); Fazio v. Kelly, 2003 WL 22227376, 2003 N.Y. Slip Op. 51276 (u), (N.Y. Civ. Ct. 2003).
This Court will not award rent or use and occupancy if the basement apartment is being rented illegally. This Court will not be the vehicle for the enforcement of collection of rent or use and occupancy regarding an illegal subject matter, i.e. — occupancy not in accordance with law.
Thus, if the respondent loses the hearing before the American Arbitration Association, then the stay is vacated, and a hearing will be held on the issue of whether the premises are being used in accordance with legal law. If such a hearing is mandated, then respondent shall serve appropriate subpoenas upon the Village of Hempstead for the production of appropriate records and witnesses so that the Judge presiding at the hearing can make an appropriate determination concerning whether the premises are being rented in accordance with law.
So ordered: