SOMMET v. CLARE NA 110 HDFC (2020)

This is a plenary action brought under article 9 of the Real Property Actions and Proceedings Law (RPAPL), in which plaintiff, Virginie Sommet, is seeking partition of an apartment located at 110 Forsyth Street in Manhattan and co-owned by herself and defendant Gary Clare. Sommet's complaint also seeks damages comprising tax, mortgage, and co-op charges that Sommet made after being allegedly ousted from the premises by Clare in 2013, and compensatory and punitive damages for alleged defamation committed by Clare against her.

Sommet now moves under RPAPL 745 for interim use and occupancy allegedly owed to her by Clare from when he putatively ousted her from the property in 2013. Sommet also requests a preliminary injunction under RPAPL 745 requiring Clare to satisfy all outstanding mortgage, tax, and other arrears on the property within 30 days, and to vacate the apartment if he fails to do so. Sommet's motion is denied.

Sommet asserts entitlement both to interim monetary relief (in the form of future use and occupancy and past use and occupancy dating back to 2013) and interim equitable relief (in the form of an injunction) under RPAPL 745 (2) (a). But that statutory provision applies only during the pendency of a special proceeding for possession under RPAPL article 7. It is not a basis for monetary relief in a plenary action under RPAPL article 9 (or other causes of action). Section 745 (2) (a) provides that in certain circumstances during the pendency of a "summary proceeding," the court "may, upon consideration of the equities, direct that the respondent, upon a motion on notice made by the petitioner, deposit with the court sums of rent or use and occupancy that shall accrue subsequent to the date of the court's order." This statute is not authority for this court to award Sommet future use and occupancy in her plenary action brought under a different RPAPL article entirely—let alone more than five years of past use and occupancy.¹

Additionally, Sommet concededly does not attempt to satisfy the elements necessary to warrant this court granting her preliminary injunctive relief against Clare under CPLR article 63. Instead, she again claims entitlement to that relief under RPAPL 745. But for the reasons discussed above, Sommet cannot obtain that relief because this is not the type of proceeding in which RPAPL 745 applies.

Accordingly, it is hereby

ORDERED that Sommet's motion under RPAPL 745 is denied.

FOOTNOTES

1.   Sommet claims use and occupancy on the ground that Clare ousted her from the apartment that they co-own—either in June 2013, due to his physical violence and intimidation preventing her from using her apartment, or in December 2013, due to his having changed the locks to deny her access. The parties hotly contest the issue of ouster. Given the absence of a basis on this motion to award use and occupancy, though, this court declines to reach that issue.

Gerald Lebovits, J.