TZIFIL REALTY CORP v. MAZREKAJ (2025)

ORDERED that the order is modified by providing that so much thereof as dismissed the petition is vacated and petition is reinstated, and so much thereof as denied the branch of petitioner's motion seeking a final judgment of possession is vacated and that branch of the motion is granted; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings.

Petitioner commenced this summary proceeding in December 2019 to recover possession of an apartment occupied by the former superintendent whose employment had been terminated by petitioner (see RPAPL 713 [11]). We note that a careful review of the notice of petition and petition reveals that, while the notice of petition includes a notice that petitioner is seeking a final judgment to include an award of use and occupancy, the petition does not include a request for that relief (see RPAPL 741 [5]), and there is nothing in the record before us indicating that the petition has been amended, upon an application by petitioner, to include a demand for use and occupancy. In light of the history of this proceeding, for purposes of this discussion, we assume without deciding that the petition has been amended and includes a claim for use and occupancy.

In September of 2021, petitioner moved, insofar as is relevant here, for an immediate trial of the proceeding, a determination of the value of monthly use and occupancy, and a judgment for use and occupancy then owed. Occupant cross-moved to sever petitioner's claim for use and occupancy. It was undisputed that occupant vacated the premises in September 2021. In an order dated November 22, 2021, the Civil Court (Heela D. Capell, J.), among other things, denied the branches of petitioner's motion seeking an immediate trial of the proceeding and a judgment awarding use and occupancy, granted occupant's cross-motion to sever petitioner's claim for use and occupancy, and dismissed so much of the petition as sought possession (see CPLR 409 [b]).

In a decision and order dated February 24, 2023 (Tzifil Realty Corp. v. Mazrekaj, 78 Misc.3d 128[A], 2023 N.Y. Slip Op. 50278[U], 2023 WL 2818794 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2023]), this court modified the November 22, 2021 order (1) by vacating the portion thereof that dismissed so much of the petition as sought possession and, in effect, the portion of the order that denied the branches of petitioner's September 2021 motion seeking an immediate trial of the proceeding and a judgment awarding use and occupancy, and granted occupant's cross-motion to sever petitioner's claim for use and occupancy; and (2) by denying occupant's cross-motion to sever the claim for use and occupancy. This court remitted the matter to the Civil Court for a new determination of the branches of the September 2021 motion seeking an immediate trial of the proceeding and a judgment awarding use and occupancy. This court held that it was improper for the Civil Court to have dismissed so much of the petition as sought possession on the ground that occupant had vacated the premises during the pendency of the proceeding, since “in a summary proceeding, the court retains jurisdiction to award possession even where the occupant vacates after the commencement of the proceeding” (Tzifil Realty Corp. v. Mazrekaj, 2023 N.Y. Slip Op. 50278[U], *2, citing 92 Bergenbrooklyn, LLC v. Cisarano, 50 Misc.3d 21, 25, 21 N.Y.S.3d 810 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2015]).

Thereafter, petitioner moved in the Civil Court to determine the monthly use and occupancy for the subject apartment, to find it to be $1,315.75 per month, and to enter a “total judgment in favor of Landlord of $28,946.50 [representing 22 months of use and occupancy then owed] and for possession of said apartment.” The notice of motion included, on the list of papers to be reviewed in support of the motion, “the entire prior motion record by [petitioner] submitted by all parties as to the prior denial of use and occupancy determination.” Petitioner subsequently moved separately for costs and sanctions. In an order dated October 11, 2023, the Civil Court (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 N.Y. Slip Op. 51271[U], *3, 2023 WL 8105242 [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 N.Y. Slip Op. 50128[U], 2021 WL 712513 [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 N.Y. Slip Op. 50151[U], 2024 WL 648026 [App. Term, 1st Dept. 2024]; 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]), and denied petitioner's separate motion for costs and sanctions. Petitioner appeals from that order.

Contrary to the determination of the Civil Court, there is nothing preventing the entry of a final judgment of possession in petitioner's favor, even though the premises has been re-let. Pursuant to RPAPL 747, “[t]he court shall direct that a final judgment be entered determining the rights of the parties” to a summary proceeding. The primary rights at issue in a summary proceeding are the respective rights of the parties to possession (see RPAPL 701; Nestor v. McDowell, 81 N.Y.2d 410, 599 N.Y.S.2d 507, 615 N.E.2d 991 [1993]; Willows v. Tonkowich, 188 Misc.2d 195, 727 N.Y.S.2d 263 [App. Term, 1st Dept. 2001]), which “rights are to be determined as they existed at the time the proceedings were commenced” (Four Forty-One Holding Corp. v. Bloom, 148 Misc. 565, 568, 266 N.Y.S. 233 [App. Term, 1st Dept. 1933]). Neither vacatur nor surrender of the premises by named respondents after the commencement of a summary proceeding affects the right of a petitioner to obtain a final judgment of possession against those respondents, so long as the petitioner can demonstrate that it had the right to recover possession from them at the commencement of the proceeding (see Sowalsky v. MacDonald Stamp Co., 31 A.D.2d 582, 294 N.Y.S.2d 1016 [1968]; 92 Bergenbrooklyn, LLC v. Cisarano, 50 Misc.3d 21, 21 N.Y.S.3d 810; Bahamonde v. Grabel, 34 Misc.3d 58, 62, 939 N.Y.S.2d 226 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011]; Four Forty-One Holding Corp. v. Bloom, 148 Misc. at 568, 266 N.Y.S. 233).

Similarly, petitioner's rental of the subject apartment after occupant's surrender had no effect on petitioner's ability to obtain a final judgment adjudicating the right to possession in its favor in this proceeding, since, as noted above, the final judgment is to be awarded based upon the respective positions of the parties at the commencement of the proceeding. We acknowledge that any warrant issued upon a final judgment in this proceeding (see RPAPL 749 [1] [“Upon rendering a final judgment for petitioner, the court shall issue a warrant”]) would be futile since it would be effective only to remove “persons named in the proceeding” (id.)—here, occupant, whose removal has become academic. Similarly, a warrant would not be effective to remove the new tenant in possession, whose rights derive from petitioner and not occupant (see 170 W. 85th St. Tenants Assn. v. Cruz, 173 A.D.2d 338, 569 N.Y.S.2d 705 [1991]), and therefore a final judgment awarding possession to petitioner as against occupant would have no effect on the rights of the new tenant in possession.

In view of the foregoing, we reinstate so much of the petition as seeks possession notwithstanding that the premises has been re-let and, upon a review of the record, we see no issues of fact regarding that claim (see CPLR 409 [b]). Thus, we grant the branch of petitioner's motion seeking a final judgment of possession (see id.; cf. 6340 NB, LLC v. Scuba Freedom, Inc., 81 Misc.3d 136[A], 2023 N.Y. Slip Op. 51402[U], 2023 WL 8794952 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2023]).

In its motion, petitioner seeks use and occupancy from December 2019 to September 2021, the date of occupant's vacatur. Now that petitioner is being awarded possession, RPAPL 747 (4) permits a concomitant award of use and occupancy (see e.g. Fieldbridge Assoc., LLC v. Sanders, 2021 N.Y. Slip Op. 50128[U]). “However, use and occupancy may only be awarded as demanded in the petition, including any amendments thereto” (M.H. Thomasmith Co. v. Nicola Design Studio, Inc., 83 Misc.3d 135[A], 2024 N.Y. Slip Op. 51193[U], *3, 2024 WL 4097238 [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2024]; see RPAPL 741 [5] [a petition in a summary proceeding must state the relief sought, which may include “the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made”]; New York City Hous. Auth. v. Sinclair, 21 Misc.3d 133[A], 2008 N.Y. Slip Op. 52183[U], 2008 WL 4810776 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2008]). Here, petitioner claims in its appellate brief that it “always requested a concomitant money and possession judgment,” but, as noted earlier, while the notice of petition includes the requisite notice that petitioner was seeking to recover use and occupancy, the petition does not include a demand for that relief (see RPAPL 741 [5]). Without knowledge of an amendment to the petition, we cannot direct the Civil Court to assess and award an amount for use and occupancy at this juncture (see New York City Hous. Auth. v. Sinclair, 2008 N.Y. Slip Op. 52183[U], *2 [“the Civil Court improvidently exercised its discretion in sua sponte, in effect, amending the petition” to reflect the sums that the landlord claimed were owed in its motion for summary judgment]). We therefore leave undisturbed so much of the order appealed from as denied the branch of petitioner's motion seeking an award of use and occupancy.

Finally, we find that the Civil Court did not improvidently exercise its discretion in denying petitioner's motion for costs and sanctions, and we deny petitioner's request that, if the matter is remitted to the Civil Court, it be assigned to a different judge.

Accordingly, the order is modified by providing that so much thereof as dismissed the petition is vacated and the petition is reinstated, and so much thereof as denied the branch of petitioner's motion seeking a final judgment of possession is vacated and that branch of the motion is granted; and the matter is remitted to the Civil Court for all further proceedings.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.