36th & Second Tenants Ass'n v. New York State Division of Housing & Community Renewal

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered May 16, 1997, which inter alia, in its second decretal paragraph, granted petitioner’s motion to stay the Division of Housing and Community Renewal (DHCR) from proceeding with S&M Enterprises’ applications for demolition pending determination of the underlying CPLR article 78 proceeding, unanimously reversed, on the law and the facts, without costs, and motion for such relief denied.

Petitioner failed to demonstrate irreparable injury at this time in the absence of a stay so as to warrant injunctive relief. Petitioner is also incorrect in arguing that DHCR may not proceed with the demolition applications in the event the harassment determination is reinstated. Such a course is discretionary (see, 9 NYCRR 2206.5 [a]). Finally, the authority to grant stays in an article 78 proceeding under CPLR 7805 is limited to instances where such relief is “ancillary’ to the ultimate relief sought. The restraint in this case, against proceeding with the demolition applications, is not ancillary to the ultimate relief sought in the underlying article 78 proceeding. Concur—Ellerin, J. P., Williams, Andrias and Colabella, JJ.