Silver-Ruth Inc. v. Rafferty

Francis J. Donovan, J.

In this summary proceeding, petitioner seeks to evict an apartment house superintendent Avhose employment has been terminated. The ansAver alleges that the discharge is- in violation of subdivisions 4 and 5 of section 704 of the Labor LaAv and that a proceeding is iiqav pending before the Ncav York State Labor Relations Board Avhich may result in. his reinstatement Avith back pay.

On the return day respondent moved for a stay of the eviction proceedings pending the determination of the proceedings before the Labor Relations Board. The Supreme Court has repeatedly stayed eviction proceedings under similar circumstances. Representative authorities are collated in Spezio v. Sutphin Flushing Realty Corp. (17 Misc 2d 960).

Prior to the reorganization of. the courts it had been the practice for respondents in summary proceedings to commence actions in the Supreme Court where affirmative injunctive or other equitable, relief Avas necessary. (See commentary in McKinney’s Cons. Laws of N. Y., Book 49%, Real Property Actions and Proceedings Law, pp.. 110, 111.)

Section 212 of the Uniform District Court Act (verbatim with section 212 of the New York City Civil Court Act) reads as follows: “ In the exercise of its jurisdiction the court shall have all of the poivers that the supreme court would have in like actions and proceedings.”

In applying this section we must distinguish between primary and incidental powers. The new act has not conferred primary power to grant injunctive or affirmative relief. (University Property Owners Assn. v. Steinberg, 40 Misc 2d 816.)

The incidental nature of a stay as contrasted with an injunction is stated in Matter of Cantelli v. Town Bd. of Oyster Bay (30 Misc 2d 39). 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 proceeding’s. Motion granted.