Opinion
79374/03.
Decided October 6, 2003.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion to: dismiss the proceeding; cross-motion for summary judgment; order-to-show cause to stay the proceeding.
Papers Numbered 1-2 10-13 38-39 36,46 37 3-9; 14-35, 40-45
Notice of Motion and Affidavits Annexed ....................... Cross-motion and Affidavits Annexed ........................... Order to Show Cause and Affidavits Annexed .................... Answering Affidavits .......................................... Replying Affidavits ........................................... Exhibits ...................................................... Upon the foregoing cited papers, the decision on these motions is as follows:
In this licensee holdover proceeding, respondent Michael Wesley Harris moves for dismissal of the proceeding. Petitioner cross-moves pursuant to CPLR § 409(b) for an order granting a summary determination in its favor. By separate order to show cause, respondent moves pursuant to CPLR § 2201 and NYCCCA § 212, to stay the proceeding until the determination of respondent's previously commenced Article 78 proceeding. The motions are consolidated for disposition.
PROCEDURAL HISTORY
In June of 2003, respondent commenced an Article 78 Proceeding in Supreme Court entitled Michael Wesley Harris v. Board of Directors of The Union Theological Seminary in New York which prays for an order 1) prohibiting respondent therein from revoking petitioner's contractual use and occupancy to Apartment 4W pursuant to the current employment agreement between petitioner and respondent and pursuant to the policies in the employment manual in force as of the signing of the employment contract, 2) prohibiting respondent from evicting petitioner from the contractually assigned Apartment 4W, and 3) prohibiting respondent from assigning petitioner to another apartment without petitioner's consent and without following the employment manual's "formula of credits" or some other criteria mutually acceptable to petitioner and respondent.
By service of a notice of petition and petition on July 1, 2003, Union Theological Seminary commenced the instant proceeding based on the termination of respondent's license to occupy apartment 4W as an incident of his employment.
FACTS
Michael Wesley Harris is a professor of Church History at Union Theological Seminary the petitioner herein. Professor Harris was offered appointment to a full time, tenured position on petitioner's faculty in 1998. The Letter of Appointment provides in relevant part:
In addition [to respondent's annual cash salary], you will be provided an unfurnished apartment on campus (with utilities included) at no cost to you. The policy of the Directors requires full-time faculty to reside at the Seminary so that professors may be readily available for teaching and advisement duties.
By Letter dated April 19, 1998, the Academic Dean sent respondent the Faculty Guide which was in effect at the time Professor Harris was hired. The Faculty Guide provides in relevant part:
Residence at the Seminary is a condition of employment for the President, full-time members of the faculty, and visiting professors, except in the circumstance that suitable faculty-designated housing is not available. . . . Housing is assigned to the regular full-time faculty-members for the convenience of the Seminary, and all faculty members are expected to live on campus.
By Letter dated April 19, 1998, Professor Harris accepted petitioner's appointment as tenured Professor of Church History. By Letter dated May 15, 1998, Holland Hendrix, the President of Faculty, notified Professor Harris that the housing allocation process was complete and gave him a choice of McGiffert 701 or McGiffert 321. The Letter indicated that Professor Harris had seen these apartments. By Letter dated June 19, 1998, Mr. Hendrix, in responding to Professor Harris' housing assignment, wrote:
To continue exploring the calculation of points misses the point. The Faculty Guide housing-point system was never intended to sort out housing priority for incoming faculty members. In point of fact, the point-system set up by the Guide specifically refers to re-assignment of apartments re-assignment of apartments for faculty already at the Seminary. It is perfectly true that the Faculty Guide allows me as president some discretion in housing assignments. But I will not invoke that presidential prerogative in this case and over-ride a request I have in hand from a senior member of the faculty.
Professor Harris continued to object to the apartment he was offered. After lengthy negotiations, petitioner reached an agreement to assign him to Knox Hall, apartment 4W. The "Agreement with Michael Harris Regarding Assignment of Faculty Housing December 1998" (the "1998 Agreement"), provides in relevant part:
Union will assign Michael Harris and family . . . to Knox 4W effective January 5-15 (date to be selected), 1999. This assignment constitutes the discretionary presidential housing assignment mandated by the Faculty Guide that accompanies the offer of appointment extended to each faculty member. Upon acceptance of this assignment, Mr. Harris relinquishes all claims to other Union housing.
In accordance with the 1998 Agreement, petitioner issued a revised appointment letter dated December 8, 1998, assigning Professor Harris to apartment 4W located in Knox Hall.
As of October 2001, the Executive Committee of the Board of Directors of petitioner passed a resolution declaring a state of financial exigency, which authorized the President of petitioner to inform the faculty and staff of this declaration. In an effort to address the state of financial exigency, petitioner entered into an agreement to execute a long-term lease of Knox Hall to Columbia University.
On November 21, 2002, the Faculty adopted proposed "Policies and Procedures for Assigning Union Seminary Apartments to Members of the Faculty and Staff" (the "Policy"), which had the stated purpose to make assignments in a fair and equitable manner and, where possible, to minimize the number of moves. The Policy expressly provides that "[i]f a residential building is sold or leased requiring reallocation of apartments, new apartments will be assigned by the President, in consultation with the Dean and the Executive Vice President." The Policy provides specific criteria for the assignment of apartments. The Policy was approved and adopted by petitioner's Board of Directors on December 5, 2002.
On February 11, 2003, petitioner canceled all current apartment assignments for Knox Hall and McGiffert Hall, another residential building owned by petitioner. In a Memorandum dated February 19, 2003, to the faculty and staff residing in Knox Hall and McGiffert Hall, petitioner gave notice of this cancellation and indicated that new assignments of apartments would begin in late March of 2003 and continue until all new assignments were made using the procedures recommended by the Faculty and adopted by the Board of Directors in December 2002. The Memorandum stated that all moves must be completed by August 15, 2004, based on the conditions set by the proposed lease with Columbia University.
Pursuant to the Policy, Professor Harris was re-assigned to McGiffert Hall, Apartment 321, a five bedroom, 1,856 square foot apartment which is currently occupied by petitioner's Executive Vice President. Professor Harris' current apartment has 3,860 square feet. All of the faculty members and administrators except one affected by the lease to Columbia University are relocating to apartments that are smaller than their current apartments.
STAY OF THE PROCEEDING
It is undisputed that this court may grant a stay in proceedings involving residential property. CPLR § 2201; Pepsi-Cola Metropolitan Bottling Co. v. Miller, 50 Misc2d 40 (Civ Ct Bronx Co 1966). Respondent bears a heavy burden of demonstrating that his case is a proper case in which the court should exercise its discretion. Only where the Civil Court is without authority to grant the relief sought should the prosecution of a summary proceeding be stayed. Scheff v. 230 East 73rd Owners Corp., 203 AD2d 151 (1st Dept 1994).
In 660 Riverside Drive Also Associates v. Marte, 178 Misc2d 784 (Civ Ct NY Co 1998), Civil Court stayed a summary holdover proceeding commenced against a former building superintendent pending a disposition by the National Labor Relations Board of an unfair labor practice complaint filed in response to the superintendent's discharge. There, the court reasoned that the "NLRB decision on whether respondent was wrongfully terminated for union activities will determine his entitlement to the apartment."
In granting the tenant a preliminary injunction which, inter alia, stayed the trial pending a determination of the DHCR in view of the irreparable harm that would be inflicted upon the tenant, the court held that such a stay is appropriate to prevent the ultimate forfeiture of the tenants' possessory interest before a ruling is rendered by the administrative agency. Reynolds v. DHCR, 199 AD2d 15 (1st Dept 1990). See also Woltall Apartments, Inc. v. Byrd, NYLJ, April 2, 1993, at p. 26, col 3 (Civ Ct NY Co).
The factors that militate in favor of the stay of the instant proceeding are the following. First, respondent has demonstrated a likelihood of his success on the merits of his defense. See Reynolds, supra.
The parties have attempted to place their own "spin" as to how the central issue in this holdover proceeding should be characterized. However, this Court determines that issue to be whether petitioner properly exercised its discretion when it canceled all of the current apartment assignments for Knox Hall and McGiffert Hall based on the Board of Directors' resolution declaring a state of financial exigency. The exercise of petitioner's discretion under these unique circumstances is not expressly contemplated by the agreements which set the terms and conditions of Professor Harris' right to possession of apartment 4W.
Petitioner contends that its actions were proper based on the unfettered discretion related to the assignment of housing to faculty and other designated employees. Respondent counters that petitioner's discretion is limited by the terms of Section III of the Faculty Guide, which provides that reassignment of faculty housing can only be made with the consent of the faculty member. Relying on the same provision, Professor Harris argues that if his reassignment was proper, he has the right to remain in apartment 4W until his employment is terminated.
While it appears that respondent's interpretation of Section III of the Faculty Guide would not give effect to the express reservation of discretion that appears in the 1998 Agreement and that language of the Faculty Guide that indicates all apartment assignments are "for the convenience of the Seminary", the Supreme Court could determine that Professor Harris' interpretation is correct and determine that petitioner's actions were in violation of respondent's contractual rights.
Second, Professor Harris commenced the Supreme Court action before petitioner commenced this summary proceeding. Although clearly a race to the courthouse as petitioner had served the predicate termination notice on June 3, 2003, respondent prevailed since proceedings in Civil Court are not commenced until service of the notice and petition. NYCCCA § 400; RPAPL § 731.
Moreover, administrative decisions of educational institutions involve the exercise of highly specialized professional judgment. These institutions are "peculiarly capable of making decisions which are appropriate and necessary to their continued existence." Gertler v. Goodgold, 107 AD2d 481, aff'd 66 NY2d 946. Thus, CPLR article 78 proceedings are the appropriate vehicle because they "ensure that the over-all integrity of the educational institution is maintained and, therefore, protect more than just the individual's right to employment." Maas v. Cornell University, 94 NY2d 87 (1999). This reasoning equally applies to the decision by the Board of Directors of Union Theological Seminary which made the decision to declare a state of financial exigency and mandated cancellation of all apartment assignments to faculty members.
While petitioner contends that this Court can determine whether Professor Harris' right to possession was properly terminated, any such determination must review whether the Board of Directors had the authority to declare a state of financial exigency and properly exercised its discretion when cancelling the appointment of apartments to faculty members residing in Knox Hall and McGiffert Hall. Likewise, the question of whether respondent's possessory interest was a mere license or, as he argues, one that is irrevocable, is inextricably interrelated with petitioner's exercise of discretion and should be decided in the context of the pending Article 78 proceeding. Maas v. Cornell University, 94 NY2d 87 (1999).
Third, Civil Court is without authority to grant the parties the ultimate relief sought by the parties. See Scheff v. 230 East 73rd Owners Corp., 203 AD2d 151 (1st Dept 1994). In the guise of this summary holdover proceeding, petitioner in fact seeks a declaratory judgment that actions taken by the Board of Directors of Union Theological Seminary was proper based on the broad powers to address the financial needs of the educational institution. By his defense, Professor Harris effectively asks this Court to enjoin petitioner's exercise of discretion in terminating his right to possess apartment 4W. Both forms of relief can only be obtained in Supreme Court as Civil Court is a statutory court of limited subject matter and equitable jurisdiction. DeCastro v. Bhokari, 201 AD2d 382 (1st Dept 1994); Trump Village Section 3, Inc. v. Sinrod, 219 AD2d 590 (2nd Dept 1995).
Fourth, in light of the fact that the Supreme Court action was commenced first, Professor Harris' request for a stay is analogous to cases where a stay is warranted on the grounds of a prior action pending. See El Greco Inc. v. Cohn, 139 AD2d 615 (2nd Dept 1989).
The parties to the Supreme Court action and the instant proceeding are identical. Any determination in Supreme Court as to the appropriateness of the Board of Director's actions must also consider whether Professor Harris had a revocable or irrevocable license to use the subject premises, and whether his right to possession was properly terminated pursuant to the applicable contractual provisions. Thus, the Supreme Court's decision will be determinative of the result in this holdover proceeding. Hope's Window v. Albro Metal Products Corp., 93 AD2d 711, appeal dismissed 59 NY2d 968 (1983).
The stay will also avoid the potential waste of judicial resources in a heavily burdened housing court and will avoid the risk of an inconsistent outcome where Professor Harris risks imminent eviction from the subject premises. Goodridge v. Fernandez, 121 AD2d 942 (1st Dept 1986).
Accordingly, respondent Harris has met his burden of demonstrating that a stay of the instant proceeding is appropriate pending the outcome of the Supreme Court action between the parties. The stay shall be conditioned on the posting of an appropriate undertaking. After reviewing the papers submitted by the parties, the Court has determined that the written submissions by the parties are an insufficient predicate upon which to set an undertaking. The Court hereby directs that a hearing be held to at which each side may submit evidence to assist the court in setting an appropriate undertaking.
Counsel shall notify the Court by conference call to set a date and time convenient to the parties for the hearing, which shall take place before the undersigned. Baranello v. 700 Shore Road Waters Edge Inc., 159 Misc2d 1040 (Sup Ct Nassau Co 1993). The motion to dismiss and cross-motion for summary judgment are hereby "marked off" calendar to be restored by stipulation or motion, if the parties so elect.
The Court shall mail courtesy copies of its decision/order to counsel.