Opinion
No. 2024-24242 Index No. LT-304454-23/QU
08-14-2024
83-40 Britton Avenue LLC, Petitioner-Landlord v. Farida Sultana, Respondent-Tenant "JOHN DOE" and "JANE DOE" Respondents-Occupants
Appearing for the Petitioner: Nikolas Preponis, Esq. Kucker Marino Winiarsky & Bittens, LLP Appearing for the Respondent Farida Sultana: Akeem Amodu, Esq. Aura Zuniga, Esq. The Legal Aid Society.
Appearing for the Petitioner: Nikolas Preponis, Esq. Kucker Marino Winiarsky & Bittens, LLP
Appearing for the Respondent Farida Sultana: Akeem Amodu, Esq. Aura Zuniga, Esq. The Legal Aid Society.
Kimon C. Thermos, J.
Hon. Kimon C. Thermos, J.H.C.
Upon the foregoing cited papers, the Decision/Order on Respondent's motion to dismiss pursuant to CPLR § 3211(a)(7) is decided as follows:
BACKGROUND
In March 2023, Petitioner, 83-40 Britton Avenue LLC ("Petitioner") commenced this nonpayment action to obtain possession of rent stabilized apartment 7A at 83-40 Britton Avenue in Flushing, New York ("Subject Premises") and for a money judgment of $38,801.85 for arrears accrued from April 2021 through January 2023 . Respondent, Farida Sultana ("Respondent"), answered the petition, asserting a general denial . Respondent obtained the Legal Aid Society as counsel and filed a motion to dismiss for failure to name and serve a necessary party , and to amend her answer. The Honorable Clifton A. Nembhard denied Respondent's motion in part to dismiss but granted her leave to file an amended answer . After the parties failed to reach a settlement, the action was transferred to the trial part on January 22, 2024 . It is undisputed that prior to the March 19, 2024 pre-trial conference, Respondent vacated and surrendered possession of the Subject Premises . Since the parties could not reach a settlement at the pre-trial conference, the Court directed the parties to engage in motion practice regarding whether the Court should dismiss this nonpayment action after Respondent's undisputed surrender.
NYSCEF #1
NYSCEF #2
NYSCEF ## 8-12
NYSCEF # 19
NYSCEF #23
NYSCEF ## 25, 27
DISCUSSION & ANALYSIS
Respondent moves to dismiss this nonpayment proceeding for failure to state a cause of action, since Respondent surrendered the Subject Premises thus rendering Petitioner's cause of action moot. Respondent relies on a line of cases from the Appellate Term, Second Department which hold that a petitioner in a summary eviction proceeding cannot be awarded an independent money judgment without a concomitant possessory judgment. See Felsenfeld v. Rogers, 77 Misc.3d 128 (A), 2022 NY Slip Op. 51143(U) (App. Term 2d Dept., 9th & 10th Jud. Dists. 2022); Javaherforoush v. Sherrard, 74 Misc.3d 137 (A), 2022 NY Slip Op. 50307(U) (App. Term 2d Dept., 9th & 10th Jud. Dists. 2022 ); Carney Realty Corp. v. Elite Tent & Party Rental, 73 Misc.3d 141 (A), 2021 NY Slip Op. 51197(U) (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2021); Fieldbridge Assoc., LLC v. Sanders, 70 Misc.3d 140 (A), 2021 NY Slip Op. 50128(U) (App. Term, 2d Dept., 2d, 11th, & 13th Jud. Dists. 2021); Patchogue Assoc. v. Sears, Roebuck & Co., 37 Misc.3d 1, 2012 NY Slip Op. 22160 (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012); 615 Nostrand Ave. Corp. v. Roach, 15 Misc.3d 1, 2006 NY Slip Op 26535 (App. Term 2d Dept., 2nd, 11th & 13th Jud. Dists. 2006). This line of cases acknowledge that the purpose of a special proceeding under Article 7 of the Real Property and Proceedings Law ("RPAPL") is to recover possession. See RPAPL §701. While a landlord may be awarded a money judgment (see RPAPL §747[4]), it is ancillary to the judgment of possession. "Regardless of a landlord's intent, the purpose of a nonpayment summary proceeding is to recover possession of the subject premises, and the 'power to fix the rent due is an incidental matter'" Sears, 37 Misc.3d at 4 quoting Matter of Byrne v. Padden, 248 NY 243, 248 (1928).
Petitioner, while acknowledging the above precedent, opposes dismissal, arguing that the court retains "jurisdiction" despite Respondent's undisputed surrender. Petitioner relies on a different line of cases from the Appellate Term, Second Department, which hold that a tenant's vacatur of possession, after a proceeding has been commenced, "does not divest the court of jurisdiction over the proceeding". Tricarichi v. Moran, 38 Misc.3d 31, 32-33, 2012 NY Slip Op. 22395 (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2012). See also Bahamonde v. Grabel, 34 Misc.3d 58 (App. Term, 2d Dept., 2nd, 11th, & 13th Jud. Dists. 2011); Lido Realty, LLC v. Thompson, 19 Misc.3d 144 [A], 2008 NY Slip Op 51105(U) (App. Term, 2d Dept., 2nd, 11th & 13th Jud. Dists. 2008); SPA 79 M. L. P. v. Disc. Liquidators, Inc., 10 Misc.3d 143(A), 2006 NY Slip Op. 50099(U) (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2006) Benben v. DiMartini, 4 Misc.3d 135(A), 2004 NY Slip Op 50778(U) (App. Term, 2d Dept., 9th & 10th Jud. Dists. 2004). Petitioner, argues that the motion should be denied because the above-referenced line of cases regarding retaining "jurisdiction" post-vacatur are "still good case law and have not been reversed." (Preponis Aff. at ¶ 12, NYSCEF # 27). Petitioner does not attempt to distinguish the two lines of cases and explain why such caselaw should be applied in Petitioner's favor. Respondent's reply, also, does not attempt to distinguish or synthesize the caselaw to support her motion to dismiss. The Appellate Term, Second Department, has not crafted a clear rule regarding whether a petitioner has a cause of action when a tenant vacates and/or surrenders after a summary proceeding has been commenced. However, the Appellate Term in Tzifil Realty Corp. v. Mazrekaj, 78 Misc.3d 128 (A), 2023 NY Slip Op. 50278 (U) (App. Term 2d Dept., 2nd, 11th & 13th Jud. Dists. 2023) cites to both lines of cases as good law.
In Tzifil, the landlord brought a summary proceeding under RPAPL§713(11), in December 2019, to recover possession of a superintendent's apartment, "it was undisputed that the occupant vacated the premises in September 2021" 78 Misc.3d 128(A) at *2 (emphasis added). After the respondent vacated, the Tzifil petitioner moved by order to show cause for an immediate trial for the determination of a money judgment of use and occupancy; respondent cross-moved to sever the landlord's claim for use and occupancy. See id. The Civil Court denied the petitioner's motion for use and occupancy, and "granted occupant's cross-motion to sever use and occupancy and dismissed petitioner's claim for possession." Id. at *2-*3. Petitioner appealed, and the Appellate Term modified the order, reinstating landlord's claim for possession, and denying occupant's motion for severance of petitioner's claim for use and occupancy. Id. at *1. The Appellate Term found that the trial court's dismissal of the landlord's cause of action for a possessory judgment was improper and remanded the proceeding back to the Civil Court for a potential judgment of possession. Id. at *4 The Appellate Term also remanded the matter for a possible money judgment, while holding that a money judgment would be concomitant to a possessory judgment. Id. Tzifil further supported the long-held precedent that a petitioner in a summary eviction proceeding cannot obtain a non-concomitant money judgment.
On remand, the Tzifil trial court dismissed the action, due to a finding of a valid surrender, thus rendering the landlord's cause of action moot. See Tzifil Realty Corp. v. Mazrekaj, 81 Misc.3d 1205 (A), 2023 NY Slip Op. 51271(U) (Civ. Ct. Kings Cty. 2023) (Jimenez, Sergio J.) (appeal pending). The trial court found that the occupant made a valid surrender by the occupant's vacatur and the landlord's acceptance of surrender by its actions to re-let the subject premises. Id. at *3-*4. Judge Jimenez concluded that the trial court need not address whether the landlord could reject the tenant's surrender, as the facts revealed a clear acceptance of the surrender by the landlord. Id. at *4. The Appellate Term, in Tzifil, did not address the issue of whether the occupant made a valid surrender of the subject premises, and only refers to the occupant's vacatur. See 78 Misc.3d at *3. Thus, the Appellate Term could not affirm the Civil Court's disposal of the Tzifil landlord's cause of action for possession, and for a money judgment for use and occupancy.
The common denominator in all the cases cited by Petitioner is that there was either no surrender, there was a dispute as to whether there was a valid surrender, or the court did not provide enough detail to say whether there was a valid surrender. In Tricarichi, at trial, the tenant's attorney announced that the tenant would be surrendering; the District Court dismissed the nonpayment action without giving the landlord an opportunity to challenge the purported surrender. See 38 Misc.3d at 32. Without a valid surrender, the landlord in Tricharichi had a cause of action for possession and could have potentially obtained a concomitant money judgment. In SPA 70 M.L.P., a commercial nonpayment action, the Appellate Term upheld the District Court's finding of fact that the landlord refused to accept tenant's offer of surrender; there was no valid surrender, and thus, the landlord still had a cause of action. In Benben, the Appellate Term only refers to "removal" of the tenants, but does not indicate that there was a valid surrender. 4 Misc.3d 135(A). In Lido Realty LLC, the Appellate Term uses the terms vacated and surrendered interchangeably and does not provide enough detail to determine whether there was a valid surrender. 19 Misc.3d 144[A]. Similarly, the Bahmonde court does not provide enough context to determine whether said surrender was valid. See 34 Misc.3d at 62. Furthermore, the Appellate Term panels, in Tricharichi and Bahmonde, presided over the Ninth and Tenth Judicial Districts, whose precedent is persuasive but would not be binding on this court sitting in the Eleventh Judicial District. See Foxwood House Assoc. LLC v. Yongli Xu, 82 Misc.3d 925 at 929-30, 2024 NY Slip Op. 24029 (Civ. Ct. Queens Cty. 2024) (Schiff, J.).
This distinction between vacatur or removal and surrender helps to distinguish the two seemingly contradictory lines of cases. In the case of mere vacatur/removal, the landlord is still entitled to a judgment of possession. If there has been a valid surrender, then the court cannot award a judgment of possession and thus also cannot award a money judgment. This is best demonstrated by Tzifil, where the Appellate Term remanded the case and the trial court made the factual determination that a surrender had occurred which obviated the need for a possessory judgment and thus also prevented the landlord from obtaining a money judgment.
Here, Respondent moves to dismiss this nonpayment action under CPLR §3211(a)(7) for Petitioner's failure to state a cause of action. The parties do not dispute that Respondent has vacated and surrendered the Subject Premises. Furthermore, Petitioner does not contest the validity of Respondent's surrender, thus disposing Petitioner's cause of action for possession. While not stated explicitly in Petitioner's opposition, Petitioner implies they are now seeking a non-concomitant money judgment, by speaking about the unfairness of the long delays in this proceeding and the effort required to commence a separate plenary action to obtain the alleged back rent owed. See Preponis Aff. at ¶ 15. Despite the difficulties faced by the Petitioner, this Court cannot disobey the well establish precedent of the Appellate Term of the 11th Judicial District by granting a money judgment where there is no valid concomitant claim for possession at the time the money judgment is sought. See Tzifil, 78 Misc.3d 128(A) ; Sanders, 70 Misc.3d 140(A); Roach, 15 Misc.3d 1.
Accordingly, Respondent's motion to dismiss is GRANTED. The Court's dismissal of this summary proceeding is without prejudice to Petitioner's claim to rent and/or use and occupancy in an appropriate plenary action. Respondent to serve Petitioner with Notice of Entry by NYSCEF within five days of this decision.
This constitutes the Decision and Order of the Court.