Civil Court of the City of New York, Queens County, August 14, 2024

The Legal Aid Society (Akeem Amodu and Aura Zuniga of counsel) for Farida Sultana, respondent.

Kucker Marino Winiarsky & Bittens, LLP (Nikolaos Preponis of counsel) for petitioner.

The decision/order on respondent's motion to dismiss pursuant to CPLR 3211 (a) (7) is decided as follows:{**84 Misc 3d at 1034}

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.^[FN1] Respondent, Farida Sultana (respondent), [*2]answered the petition, asserting a general denial.^[FN2] Respondent obtained The Legal Aid Society as counsel and filed a motion to dismiss for failure to name and serve a necessary party,^[FN3] 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.^[FN4] After the parties failed to reach a settlement, the action was transferred to the Trial Part on January 22, 2024.^[FN5] It is undisputed that prior to the March 19, 2024 pretrial conference, respondent vacated and surrendered possession of the subject premises.^[FN6] Since the parties could not reach a settlement at the pretrial 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.

Discussion and 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.,{**84 Misc 3d at 1035} 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 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006].) This line of cases acknowledge that the purpose of a special proceeding under article 7 of the Real Property Actions and Proceedings Law 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 [*3]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 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; see also Bahamonde v Grabel, 34 Misc 3d 58 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; Lido Realty, LLC v Thompson, 19 Misc 3d 144[A], 2008 NY Slip Op 51105[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Spa 79 M.L.P. v Discount 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 law and have not been reversed." (NYSCEF Doc No. 27, Preponis aff ¶ 12.) Petitioner does not attempt to distinguish the two lines of cases and explain why such case law should be applied in petitioner's favor. Respondent's reply, also, does not attempt to distinguish or synthesize the case law 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{**84 Misc 3d at 1036} in Tzifil Realty Corp. v Mazrekaj (78 Misc 3d 128[A], 2023 NY Slip Op 50278[U] [App Term, 2d Dept, 2d, 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; "[i]t was undisputed that occupant vacated the premises in September 2021" (78 Misc 3d 128[A], 2023 NY Slip Op 50278[U], *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, "granted occupant's cross motion to sever petitioner's claim for use and occupancy, and dismissed petitioner's claim for possession." (2023 NY Slip Op 50278[U], *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*2-3.) 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 County 2023, Jimenez, 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 relet the subject premises. (2023 NY Slip Op 51271[U],*2.) 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 *3.) 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{**84 Misc 3d at 1037} occupant's vacatur. (See 78 Misc 3d 128[A], 2023 NY Slip Op 50278[U],*2.) 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 [*4]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 Tricarichi had a cause of action for possession and could have potentially obtained a concomitant money judgment. In SPA 79 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], 2004 NY Slip Op 50778[U],*2.) 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], 2008 NY Slip Op 51105[U].) Similarly, the Bahamonde 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 Tricarichi and Bahamonde, 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, 929-930 [Civ Ct, Queens County 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{**84 Misc 3d at 1038} 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 ¶ 15.) Despite the difficulties faced by the petitioner, this court cannot disobey the well established precedent of the Appellate Term of the Eleventh 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], 2023 NY Slip Op 50278[U]; Sanders, 70 Misc 3d 140[A], 2021 NY Slip Op 50128[U]; 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.