ourt (Sergio Jimenez, J.) found that petitioner "has been renting the unit to a tenant since 'a few months' after vacatur of the respondent," and, in effect, denied the branch of petitioner's motion seeking possession and dismissed so much of the petition as sought possession (see CPLR 409 [b]) because "no claim of possession is available" (Tzifil Realty Corp. v Mazrekaj, 81 Misc.3d 1205 [A], 2023 NY Slip Op 51271[U], *3 [Civ Ct, Kings County 2023]). The court denied the branch of petitioner's motion seeking use and occupancy and, in effect, dismissed so much of the petition as sought use and occupancy, without prejudice, on the ground that no money judgment can be awarded without a concomitant award of possession (see e.g. 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]; but see Rosebud Owner LLC v Sang Tan Park, 81 Misc.3d 143 [A], 2024 NY Slip Op 50151[U] [App Term, 1st Dept 2024]; Mauer-Bach Realty LLC v Gomez, 43 Misc.3d 141 [A], 2014 NY Slip Op 50845[U] [App Term, 1st Dept 2014]), and denied petitioner's separate motion for costs and sanctions. Petitioner appeals from that order.

Order (Evon M. Asforis, J.), dated November 24, 2023, reversed, without costs, and motion granted to the extent of amending the nonpayment petition and awarding landlord a money judgment in the principal sum of $45,000. Landlord's unopposed motion to amend the nonpayment petition and for summary judgment thereon should have been granted, based on its unrebutted showing that tenant failed to pay rent arrears of $45,500 shown to have been owed through March 2021. Tenant's voluntary vacatur during the pendency of the proceeding did not deprive the court of jurisdiction over the monetary claims contained in the petition (see Mauer-Bach Realty LLC v Gomez, 43 Misc.3d 141 [A], 2014 NY Slip Op 50845[U] [App Term, 1st Dept 2014]).

The February 19, 2019 order, which denied landlord's motion, in effect, to vacate or modify a prior order which was not the result of a motion made on notice, is "subject to full appellate review on the merits" ( Lamot v. City of New York , 297 AD2d 527 [2002] ). Tenant's voluntary vacatur during the pendency of the holdover proceeding did not deprive the court of jurisdiction over the monetary claims contained in the petition, including use and occupancy and attorneys' fees (seeMauer-Bach Realty LLC v Gomez , 43 Misc 3d 141[A], 2014 NY Slip Op 50845[U] [App Term, 1st Dept 2014] ). In dismissing the monetary claims without prejudice to landlord's commencement of a plenary action, Civil Court relied upon a vaguely described stipulation that was never raised by the parties below (or on appeal), and is not in the record.

The February 19, 2019 order, which denied landlord's motion, in effect, to vacate or modify a prior order which was not the result of a motion made on notice, is "subject to full appellate review on the merits" (Lamot v. City of New York, 297 A.D.2d 527 [2002]). Tenant's voluntary vacatur during the pendency of the holdover proceeding did not deprive the court of jurisdiction over the monetary claims contained in the petition, including use and occupancy and attorneys' fees (see Mauer-Bach Realty LLC v Gomez, 43 Misc.3d 141 [A], 2014 NY Slip Op 50845[U] [App Term, 1st Dept 2014]). In dismissing the monetary claims without prejudice to landlord's commencement of a plenary action, Civil Court relied upon a vaguely described stipulation that was never raised by the parties below (or on appeal), and is not in the record.

In this posture, landlord's judicial admissions in the Supreme Court action, now relied upon by tenant, were insufficient to raise any triable issue of fact as to whether tenant was a month-to-month tenant (see Matter of Union Indem. Ins. Co. of NY, 89 NY2d 94, 103 [1996]; Baje Reality Corp. v Cutler, 32 AD3d 307, 310 [2006]; Jerome Prince, Richardson on Evidence § 8-215 [Farrell 11th ed 1995]). Since it is undisputed that tenant was in possession at the time of the institution of this summary proceeding, its subsequent voluntary vacatur during the pendency of the appeal did not have the effect of depriving the court of jurisdiction (see Mauer-Bach Realty LLC v Gomez, 43 Misc 3d 141[A], 2014 NY Slip Op 50845[U] [App Term, 1st Dept 2014]; Sheldon Terrace v Schneider, 18 Misc 2d 456 [App Term, 2nd Dept 1959]; 3 Robert F. Dolan, Rasch's Landlord & Tenant - Summary Proceedings, § 45:3 at 183 [5th ed 2017]). Nor is the appeal rendered moot, as tenant's vacatur did not resolve the ancillary relief sought by landlord, including attorneys' fees and use and occupancy (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Collins v 628 W. End LLC, 127 AD3d 495 [2015]).

Clearly, since this rule involves the acquisition of jurisdiction, "commencement" in this context must continue to be defined by service of the petition and notice of petition, not when they are filed, for jurisdiction is obtained upon service, not upon filing ( see e.g. Siedlicki v Doscher, 33 Misc 3d 18 [App Term, 2d, 11th & 13th Jud Dists 2011]). A related rule is that a respondent's removal after the "commencement" of the proceeding does not divest the court of jurisdiction (2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 38:27 [4th ed]; see e.g. Sowalsky v MacDonald Stamp Co., 31 AD2d 582 [1968]; Mauer-Bach Realty, LLC v Gomez, 43 Misc 3d 141[A], 2014 NY Slip Op 50845[U] [App Term, 1st Dept 2014]; Tricarichi v Moran, 38 Misc 3d 31 [App Term, 9th & 10th Jud Dists 2012]). In this context, too, since the issue is one of jurisdiction, "commencement" must continue to be defined in terms of service of the petition and notice of petition, not by reference to a filing date.

2011] ). A related rule is that a respondent's removal after the “commencement” of the proceeding does not divest the court of jurisdiction (2 Dolan, Rasch's Landlord and Tenant–Summary Proceedings § 38:27 4th ed.; see e.g. Sowalsky v. MacDonald Stamp Co., 31 A.D.2d 582, 294 N.Y.S.2d 1016 1968; Mauer–Bach Realty, LLC v. Gomez, 43 Misc.3d 141[A], 2014 N.Y. Slip Op. 50845 [U], 2014 WL 2462807 [App.Term, 1st Dept.2014]; Tricarichi v. Moran, 38 Misc.3d 31, 959 N.Y.S.2d 372 [App.Term, 9th & 10th Jud.Dists.2012] ).

The February 19, 2019 order, which denied landlord's motion, in effect, to vacate or modify a prior order which was not the result of a motion made on notice, is "subject to full appellate review on the merits" (Lamot v. City of New York, 297 A.D.2d 527 [2002]). Tenant's voluntary vacatur during the pendency of the holdover proceeding did not deprive the court of jurisdiction over the monetary claims contained in the petition, including use and occupancy and attorneys' fees (see Mauer-Bach Realty LLC v Gomez, 43 Misc.3d 141 [A], 2014 NY Slip Op 50845[U] [App Term, 1st Dept 2014]). In dismissing the monetary claims without prejudice to landlord's commencement of a plenary action, Civil Court relied upon a vaguely described stipulation that was never raised by the parties below (or on appeal), and is not in the record.

Indeed, a landlord may obtain a money judgment against an appearing tenant in a summary proceeding even when a tenant's surrender of possession of the premises after commencement of the proceeding renders possession moot. 1129 N. Boulevard, LLC v. Astra Grp., Inc. , 43 Misc. 3d 137(A), 2014 WL 1717008 (App. Term 2nd Dept. 2014), Tricarichi v. Moran , 38 Misc. 3d 31, 32-33, 959 N.Y.S.2d 372 (App. Term 2nd Dept. 2012), Bahamonde v. Grabel , 34 Misc. 3d 58, 62, 939 N.Y.S.2d 226 (App. Term 2nd Dept. 2011), Abner Props. Co. v. Frederick Goldman, Inc. , 57 Misc. 3d 152(A), 2017 WL 5711063(App. Term 1st Dept. 2017), Mauer-Bach Realty LLC v. Gomez , 43 Misc. 3d 141(A), 2014 WL 2462807 (App. Term 1st Dept. 2014).