Appeals by tenant from (1) an order of the Civil Court, Queens County (S. Gottlieb, J.), dated July 5, 2002, denying its motion to dismiss, (2) an order of said court dated the same date, directing tenant to pay landlord one month's use and occupancy in the sum of $9,452.55, (3) so much of an order of said court, dated October 14, 2002, permitting landlord to discontinue the proceeding without prejudice as did not require landlord to refund the use and occupancy paid pursuant to the court's order of July 5, 2002, and (4) so much of an order of said court, dated the same date, as denied the branch of tenant's cross motion that sought an order directing landlord to refund the use and occupancy.

Appeals from orders dated July 5, 2002 unanimously dismissed for lack of prosecution.

Appeal from so much of the order dated October 14, 2002 permitting landlord to voluntarily discontinue the proceeding without prejudice as did not require landlord to refund the use and occupancy paid pursuant to the court's order of July 5, 2002 unanimously dismissed as moot.

Order insofar as appealed from dated October 14, 2002 denying that branch of tenant's cross motion that sought an order directing landlord to refund the use and occupancy paid by tenant unanimously reversed without costs and landlord is directed to refund to tenant the sum of $9,452.66.

In this commercial holdover proceeding, the Civil Court, by order dated July 5, 2002, upon landlord's application pursuant to RPAPL 745 (2), directed tenant to pay landlord one month's use and occupancy in the sum of $9,452.66. Tenant paid this amount by official check dated July 19, 2002. Thereafter, tenant's counsel advised the court and landlord's counsel that [*2]tenant was not a proper party respondent because it was not the tenant named in the lease between the parties (actually a sublease), which had been amended to name as the tenant a different corporation. Without conceding tenant's point, landlord's counsel sought to discontinue the proceeding without prejudice. By orders dated October 14, 2002, the court, inter alia, permitted landlord to discontinue the proceeding without prejudice but denied an application by tenant for a refund of the use and occupancy paid pursuant to the court's order.

In our view, restitution should be granted.

We note that it was error for the court, on July 5, 2002, to direct tenant to pay landlord the subject use and occupancy since tenant had not requested two adjournments and, when the 14 days in which the proceeding was adjourned at landlord's attorney's request are deducted, 30 days had not elapsed since the first appearance of the parties in the proceeding on May 31, 2002 (RPAPL 745 [2]; see Montague St. Realty Assoc. v Simpson, NYLJ, May 31, 1994 [App Term, 2d & 11th Jud Dists]). In the exercise of discretion, restitution is ordered in light of this error and in light of the fact that landlord voluntarily discontinued the proceeding, thus nullifying the prior order (Newman v Newman, 245 AD2d 353 [1997]), following tenant's assertion that it was not the party named in the amended lease. In the exercise of discretion, tenant's request for interest is denied (CPLR 5001 [a]), as is its request for sanctions.
Decision Date: December 22, 2003