LANDLORD & TENANT LITIGATION

1. holdover proceedings, which are based on the expiration or termination of a right to possess the real property of the tenant or non-tenant occupant with possessory rights or claiming those rights, and

2. nonpayment proceedings, which are based on a tenant’s alleged default in paying rent.

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The courts that hear summary proceedings have the jurisdiction to do so only if the respondent — a tenant or an occupant — possesses the property when the proceeding commences. If a tenant vacates owing outstanding rent before the proceeding begins, the landlord’s remedy is a plenary action for money. If the tenant or occupant vacates and surrenders possession while the proceeding is pending, the court may permit the proceeding to continue to final adjudication.

 

A petitioner’s holdover claim is often only against the tenant; a nonpayment claim, by definition, can only be against a tenant. But as a practical matter, a landlord wishing to recover possession of real property in a summary proceeding needs to name as a respondent and serve any subtenant or other occupant in possession or with possessory rights.

 

Even when a landlord prevails and thus obtains a possessory judgment and a warrant of eviction, a subtenant or legal occupant not named as a respondent may not be evicted pursuant to the warrant. If the identity of an occupant other than the tenant is unknown to the landlord but the occupant is in possession or might be in possession, the petitioner may name the occupant as a respondent by a fictitious name. The fictitious names normally used are “John Doe” and “Jane Doe” for individual persons or “XYZ Corp.” for corporations, companies, or other business entities.

 

A summary proceeding is usually commenced by filing a notice of petition and petition. Courts also have the power to issue an order to show cause in lieu of a notice of petition, although landlords’ attorneys rarely commence summary proceedings that way. In contrast to plenary actions, in which a request for judicial intervention must be filed before a case is placed on the court’s calendar, a summary proceeding is placed on the calendar on the petitioner filing the notice of petition and petition, except for New York City nonpayment proceedings, which are placed on the calendar when the respondent files an answer.

 

Summary proceedings dispense with many other procedural aspects of plenary actions, such as disclosure conferences (disclosure in a summary proceeding may be obtained only with leave of court), separate calendar types (such as trial calendars, pretrial calendars, and motion calendars), and notes of issue or notices of trial to get the case onto a trial calendar.

 

Every summary-proceedings calendar is a trial calendar for Civil Practice Law and Rules (CPLR) purposes. The court may hold a trial whenever the proceeding is on the calendar, although, in parts of New York City, Manhattan in particular, the matter will often be transferred to a different part for trial. In practice, adjournments are common and easy to obtain if it is the first court appearance in the matter.

 

The current filing fee in the courts that adjudicate summary proceedings in New York City and Long Island (Civil Court and District Court, respectively) is $45.00. Other than that filing fee, which the petitioner must pay, the only other court filing fees in a summary proceeding are for a jury demand ($70.00) or a notice of appeal ($30.00). There is no fee to file a motion. The notice of petition and petition are filed with the clerk. Upon this filing, the petition is kept in the 

court file. The clerk then returns the notice of petition to the petitioner, which must timely re-file it along with the affidavit of service of the notice of petition and petition.

 

In a holdover proceeding, as well as in a nonpayment proceeding outside New York City, the notice of petition designates the petition’s return date, which the court clerk selects and inserts into the notice of petition upon filing.

 

In a New York City nonpayment proceeding, the notice of petition is returnable before the clerk, and the respondent must serve and file with the clerk an answer within five days after being served with the notice of petition and petition. Upon the respondent’s filing an answer, the clerk fixes a court date.

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If the respondent fails to answer, the petitioner may apply for a default judgment. Default-judgment applications are submitted to the clerk, who processes and forwards them to a judge. The judge then reviews the papers. If the papers are free of defects, including improper proof of service, the judge will issue a default judgment of possession and a warrant of eviction.

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2. Requirements for Petitions in Summary Proceedings

Summary proceedings under RPAPL Article 7 are purely statutory in nature. A petitioner’s strict compliance with the statute is required to give a court the jurisdiction to hear the proceeding. The principles of liberalized pleading requirements apply with more limited force to petitions in summary proceedings than to complaints in plenary actions. Despite the modern trend favoring a liberal construction of pleadings, procedural irregularities remain common, and often successful, defenses in summary proceedings.

 

RPAPL 741 enumerates the required contents of a summary-proceeding petition. An extensive body of case law interprets these requirements. A failure to comply with any requirement can result in dismissing the petition. Some irregularities or errors in a notice of petition and petition are amendable. Those deemed jurisdictional are not.

 

The petition must contain a description of the premises to be recovered. The description in the petition must be sufficient to allow a marshal to execute a warrant based on the description without any additional information. Even if the description of the premises in the petition reflects the precise wording in the lease, the description will be inadequate if it leaves the exact location of the premises unclear.

 

The petition must accurately state the petitioner’s interest in the real property sought to be recovered, the respondent’s interest in the real property, and the respondent’s relationship to the petitioner regarding the real property.

 

The petition must also set out the facts on which the summary proceeding is based. These facts include:

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1. In the case of a holdover proceeding, when and how the tenancy terminated or expired (e.g., natural expiration of the lease term, service of a termination notice, service of a 30-day termination notice on a month-to-month tenant with no written lease) and that the respondent remained in possession after the termination or lease expiration date. If the holdover alleges a ground other than the natural expiration of a lease term and if the termination was effectuated by giving the respondent a termination notice, the petition also should have annexed to it a copy of the termination notice served on the respondent and proof of its service. If the termination notice is predicated on a cure notice and failure to cure, the petition should also annex a copy of the cure notice and proof of its service.

2. In the case of a nonpayment proceeding, the amount of rent demanded from the respondent.

3. How, or under what agreement, the tenant entered into possession and, in the case of a nonpayment proceeding, that the lease or agreement obligates the tenant to pay the rent sought in the petition.

 

The facts on which the proceeding is based include details less obvious to inexperienced practitioners. Even when the property sought to be recovered is commercial, special additional allegations must appear in a petition if the property sought to be recovered is in New York City or another jurisdiction that has rent regulation or more stringent regulation of multiple dwellings.

 

One requirement for petitions in New York City summary proceedings is that they state the regulatory status of the premises to be recovered. It will normally suffice in a summary proceeding to recover exclusively commercial property to allege that the premises are not subject to rent stabilization or rent control on the basis that they are used solely for non-residential purposes.

 

In New York City, any building containing three or more residential units is a multiple dwelling. If the commercial premises to be recovered are in a building with three or more residential units, then, to maintain a summary proceeding, the building in which the premises are located must have a current multiple dwelling registration (MDR) on file with the New York City Department of Housing Preservation and Development (HPD).

 

This rule applies even if the specific premises to be recovered in the building are commercial. The summary-proceeding petition must plead either that (i) the premises are contained in a multiple dwelling that has a current MDR on file with HPD and provide the MDR number and the name and address of the registered managing agent or that (ii) the premises are not contained in a multiple dwelling building.

 

A petitioner that lacks the required MDR when the proceeding begins will normally be allowed to cure by obtaining one before trial. Failing to prove as part of the petitioner’s prima facie case at trial that a current MDR is on file will be fatal.

 

The petition must additionally set forth the relief sought. The relief must always include a prayer for a judgment of possession and warrant of eviction. That is the primary relief to be awarded in a summary proceeding: A commercial petition that does not seek possession is without jurisdictional effect. The petition will almost always include a prayer for a money judgment for the rent arrears in a nonpayment proceeding. The petition may also seek other, incidental monetary relief, such as a money judgment for use and occupancy based on the fair-market rental value for the period after termination or expiration during which the respondent remains in possession (if notice is given in the notice of petition that this relief will be sought) and for legal fees and costs, if the parties’ lease authorizes that recovery.

 

Courts will typically allow petitioners to seek a money judgment for rent arrears in a holdover proceeding for a short period of time before termination or expiration. If many months of pre-termination rent arrears are sought as ancillary relief in a holdover proceeding, courts are less likely to award those arrears. The better practice for a landlord seeking to recover rent is to bring a nonpayment proceeding before the expiration or termination of dents will almost always submit written answers. Pro se respondents will frequently appear before the clerk to answer orally.

 

An answer in a summary proceeding may contain any legal or equitable defense or counterclaim, especially because a holdover proceeding commenced after the lease expiration will not be fatal to a nonpayment proceeding commenced before.

   

A petition in a summary proceeding may be verified by the petitioner or by the petitioner’s counsel, even if counsel’s office is located in the same county as the petitioner. This differs from the normal CPLR verification requirement.

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3.  Answers in Summary Proceedings

In a New York City nonpayment proceeding, the tenant must serve its answer within five days after service of the notice of petition and petition and file it with the clerk. A pre-answer motion to dismiss a nonpayment proceeding within the time to answer does not automatically toll the time to answer. Although particularly draconian (the benefit of CPLR 3211(f) is inapplicable to respondents in New York City nonpayment proceedings), a default judgment may be entered if an answer is not filed within the prescribed statutory time frame to answer, notwithstanding the pendency of a pre-answer motion to dismiss, even if the respondent has appeared by moving to dismiss.

 

To preserve the right to answer and avoid a default judgment while a pre-answer motion to dismiss is pending, a respondent may move pre-answer by order to show cause to dismiss a New York City nonpayment proceeding and include in the show-cause order a temporary restraining order tolling the respondent’s time to answer until after the court resolves the motion to dismiss.

 

In all other summary proceedings besides New York City nonpayment proceedings, the answer is due when the petition is noticed to be heard, unless the notice of petition is served at least eight days before the petition is noticed to be heard and demands that the answer be made at least three days before the petition is noticed to be heard. Respondents in holdover proceedings or in nonpayment proceedings outside New York City will not be in default for failing to interpose a written answer if they appear in court on the return date.

 

A respondent may answer in a summary proceeding orally or in writing. Notwithstanding the limited statutory jurisdiction of the courts adjudicating summary proceedings, they retain the jurisdiction to adjudicate equitable defenses a respondent might raise.

 

Lease provisions barring tenants from raising counterclaims in summary proceedings will be enforced, but a counterclaim inextricably intertwined with the petitioner’s claim will be allowed notwithstanding a “no counterclaims” lease provision.

 

The ordinary statutory limits on monetary jurisdiction of the courts of limited jurisdiction that adjudicate summary proceedings are dispensed with in the context of summary proceedings, both for the petitioners’ claims and for the respondents’ counterclaims. There is no monetary limit to a petitioner’s rent claims in a nonpayment proceeding to a petitioner’s ancillary claim for legal fees or use and occupancy, or to a respondent’s counterclaims.

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4. Motions in Summary Proceedings

Motions in summary proceedings may be made in substantially the same manner as any proceeding, including pre-answer motions to dismiss, summary-judgment motions, or motions to strike answers, bills of particular demands, or jury demands. A motion in a summary proceeding may be made returnable when the proceeding is scheduled to be heard. The minimum eight-day notice requirement for petitions set forth in CPLR 2214 is inapplicable in summary proceedings.

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(B)Holdover Proceedings

1. Common Grounds for Holdover Proceedings The three most common grounds for holdover proceedings against commercial tenants are:

 

​(A) So-called “no-defense” holdover proceedings (also called “no-grounds” holdovers, because the petitioner need not allege grounds to terminate a tenancy), which are based on the natural expiration of the full term of a written lease or the termination of a month-to-month tenancy by serving a 30-day termination notice (or a one-month termination notice outside New York City). If the lease has expired but the landlord has accepted rent after the expiration, the landlord will be deemed to have created a month-to-month tenancy on the same terms as the expired lease (except for the term of the tenancy and the monthly rent), and a 30-day notice of termination must be given to terminate the tenancy.

 

(B) Holdover proceedings based on the tenant’s alleged breach of a covenant of the lease.

 

(C) Holdover proceedings based on the landlord’s exercising an early termination option that allows the landlord to effectuate an early cancellation of the lease under certain circumstances, such as a demolition, renovation, or selling the building.

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2. Predicate Notices in Holdover Proceedings

Unless the full term of a written lease has expired and the landlord has not subsequently accepted rent, a termination notice is required to terminate the tenancy before a holdover proceeding may be maintained. The termination notice must be issued when the termination is based, for example, on a tenant’s breach of covenant of the lease. If the tenancy is a month-to-month tenancy, the termination notice, in addition to giving at least 30-days’ notice (or one-months’ notice outside New York City), must set the last day of the month as the termination date. Unless served on the first day of a 31-day month, a 30-day notice to terminate a month-to-month tenancy must expire on the last day of the following month. The practical result is that although it is denominated a 30-day notice, 60-days’ notice may be required depending on when in the month the notice is served. A 30-day notice of termination of a month-to-month New York City tenancy must be served in the same manner as a notice of petition and petition, the service of which is governed by RPAPL 735.41

 

A one-month notice to terminate a month-to-month tenancy outside New York City has no prescribed method of service, may be served by mail, and need not be in writing, although written notice with proof of service, annexed to the petition, avoids a “he said/she said” dispute at trial about what notice was given and when.

 

To terminate a tenancy, a termination notice must terminate a tenancy clearly definitely and unequivocally, and unambiguously. An equivocal or ambiguous notice will form a basis to dismiss the petition. n the case of a lease breach, a commercial lease will typically require the landlord to serve a cure notice, offering the tenant a prescribed time period to correct a lease breach before a termination notice may issue if the tenant fails to cure.

 

A cure notice must set forth the tenant’s claimed defaults under the lease and that the landlord will terminate the tenancy if the tenant does not cure the default by a specified date. A cure notice must specify the lease provision allegedly violated and tell the tenant what remedial action will effectuate a cure and avoid termination.

 

When a landlord claims to have exercised an early termination option under a lease provision allowing cancellation of the lease, the cancellation provisions are strictly construed in the tenant’s favor. This furthers a policy disfavoring forfeiting tenancies.

 

If the tenancy is a month-to-month tenancy with no written lease, a petitioner must give the tenant a 30-day notice (or one-months’ notice outside New York City).

 

A petitioner must sign a termination or other notice required by a lease provision or statute. The notice must contain the signature of an individual whose authority to act on the petitioner’s behalf is readily apparent and clear on its face, specifically identified in the lease, known to the tenant from earlier dealings, or established by proof of authority furnished with the notice. A termination notice signed by a petitioner’s attorney or agent who is unknown to the tenant andnot named in the lease is ineffective. The respondent is entitled to disregard it as not emanating from the petitioner. An unsigned termination notice is similarly ineffective.

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If the notice is signed by an attorney or agent with whom the tenant is familiar and the tenant knows or should know of the attorney or agent’s authority to act on the landlord’s behalf, the attorney’s or agent’s signature is sufficient. A typewritten name does not constitute a signature, but a handwritten signature, whether signed by the petitioner or a signature stamp, suffices.

 

Accepting rent after service of the termination notice but before filing the petition and notice of petition will vitiate the termination and reinstate the tenancy if the rent accepted is for any month after the termination date set forth in the notice. In the case of a notice to terminate a lease, the effect will be to reinstate the lease. For a 30-day notice to terminate a month-to-month tenancy, the effect will be to reinstate the month-to-month tenancy. When the petitioner’s acceptance of the rent was clearly inadvertent, such as acceptance through a bank lockbox, and the rent is promptly returned when the petitioner discovers the inadvertent acceptance, the termination notice will stand despite the acceptance of rent.

 

Commencing a nonpayment proceeding after the expiration date of the termination notice will vitiate the termination notice; commencing a nonpayment proceeding seeks to enforce the tenant’s obligations under the lease and is inconsistent with asserting that the tenancy was terminated. A nonpayment proceeding commenced after service of the termination notice but before the termination date will not affect the termination notice. If a landlord commences a nonpayment proceeding before the tenancy terminates and then commences a holdover proceeding, both proceedings may be maintained simultaneously.

 

Service of a later termination notice will also vitiate an earlier termination notice. To be terminated, a tenancy must still be in effect in the first place, and setting a termination date necessarily means that the tenancy remains in effect until that date.

 

If a holdover proceeding is dismissed or discontinued, the same predicate notice may not be re-used in a later holdover proceeding. A new termination notice must be issued. A limited exception allowing a termination notice to be re-used in a later proceeding arises if the second proceeding is begun before the first is terminated. For this exception to apply, the second proceeding must be brought promptly after the first, and no discernable prejudice to the respondent may result from re-using the notice.

 

Some laws protecting residential tenants in holdover proceedings do not exist for commercial tenants: (i) the Real Property Law § 223-b prohibition against retaliatorily evicting residential tenants does not protect commercial tenants; (ii) conditional limitations, which permit a landlord, for a tenant’s default in the payment of rent, to terminate the lease and prosecute a holdover proceeding instead of maintaining a nonpayment proceeding; and (iii) commercial-lease provisions in fine print are enforceable, despite the unenforceability under CPLR 4544 of fine-print residential leases.

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(C)Nonpayment Proceedings 1. Grounds and Parties

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Only “rent” may be recovered in a nonpayment proceeding.

Sums a tenant owes to the landlord that do not constitute rent under a lease agreement may not be demanded or recovered in a nonpayment proceeding.

A landlord may maintain a nonpayment proceeding against a tenant when (i) the respondent is a tenant (not a subtenant or other occupant that has no landlord-tenant relationship with the landlord), (ii) the tenant agreed to pay rent under a lease or rental agreement, (iii) the tenant has defaulted in paying rent required under the lease or rental agreement, and (iv) the landlord has demanded the rent.

 

Only “rent” may be recovered in a nonpayment proceeding. Sums a tenant owes to the landlord that do not constitute rent under a lease or rental agreement may not be demanded or recovered in a nonpayment proceeding. A landlord wishing to recover these sums must begin a plenary action. Landlords often include provisions in leases deeming these charges “additional rent” to render into rent what would otherwise be non-rent charges or fees, to make them recoverable in a nonpayment proceeding, and to compel the tenant’s eviction for failure to pay them.

 

Common examples of additional rent include real property tax-escalation charges, water and sewer charges, condominium common charges where the subject property is owned as a condominium, and legal fees. In the context of commercial tenancies, courts in nonpayment proceedings will enforce these provisions, rendering these additional charges as rent.

 

2. Rent Demand

RPAPL 711(2) provides for a written or oral rent demand as the predicate to commencing a nonpayment proceeding. Giving a proper rent demand is a jurisdictional prerequisite to maintaining a nonpayment proceeding. The failure to do so requires dismissal.

 

A rent demand may be issued as soon as the rent for any month is past due. Although the statute provides for either written or oral rent demands, it imposes specific requirements for written demands. To avoid disputes over whether an oral demand was made, what exactly was said, and whether it constituted a sufficient demand, commercial landlords almost always opt for a written rent demand to prove service of the rent demand and its contents in court.

 

Under RPAPL 735, a written rent demand, commonly known as a “three-day notice” (which may be longer as provided for in a lease), must be served on the tenant in the same manner as a notice of petition and petition. When a landlord gives a written three-day notice, a copy of the three-day notice and the affidavit of its service must be annexed to the nonpayment petition.

 

The written rent demand must set forth the amount of the rent arrears due and give the tenant at least three days to pay the arrears or surrender possession of the premises. It must also state that if neither occurs within the three days (or, alternatively, the longer period provided in the notice), a nonpayment proceeding will be commenced.

 

The rent demand must be specific about the alleged rent due. It must inform the tenant of the specific period for which rent is alleged to be due and be a good-faith approximation of the amount alleged to be due for each period. The demand should state the total sum due and give a month-by-month breakdown of the months demanded and the amount demanded for each month. A single lump-sum amount alleged for numerous months without any break down or a lump-sum prior balance carried over into the first month of the period covered by the rent demand is insufficient and should result in dismissal.

 

If a rent demand seeks payment of additional rent items like real-property tax escalations, condominium charges, water charges, and sewer charges, the demand should provide a breakdown of the additional rent charges, the month(s) for which they are demanded, and the amount of each demanded for each month.

 

A landlord need not sign a written rent demand in a nonpayment proceeding. An unsigned three-day notice or one signed by an attorney or agent will suffice. Although a landlord must give the tenant at least three days after serving the rent demand to pay the arrears, the demand need not specify a payment-deadline date.

 

The parties may, by lease provision, impose additional requirements on the landlord in giving a rent-demand notice, but they may not agree to reduce the requirements to less than those required by statute. A rent demand that does not comply with the statutory requirements is jurisdictionally defective even if it complies with lease provisions governing rent demands. If the lease imposes on the landlord more stringent requirements for a rent demand than the statute does, then the rent demand must comply with the lease provisions as well as the statute.

 

If a landlord obtains a judgment in a nonpayment proceeding, the court will generally stay issuance of the warrant of eviction until five days from the entry of the judgment. The warrant of eviction will not be issued, or is a nullity, if the tenant pays the full amount of the judgment within five days or before the issuance of the warrant. This permits a tenant to pay the judgment in full to avoid issuance of the warrant.

 

Unlike a holdover proceeding, in which, if the landlord prevails, the tenancy is terminated on the termination date in the termination notice (and before the proceeding commences), a tenancy is terminated in a nonpayment proceeding when the warrant of eviction issues.

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Unlike in residential nonpayment proceedings, the doctrine of laches is inapplicable and may not be raised in commercial nonpayment proceedings, regardless of the length of the landlord’s delay in the bringing the rent claim or the prejudice resulting to the tenant.

 

Also, the lack of a required certificate of occupancy or violation of the certificate of occupancy does not bar a nonpayment proceeding or recovering rent or use and occupancy in a holdover proceeding against a commercial tenant, as it does for a residential tenant.

 

Landlords also have ways to use a lease to transform a nonpayment-of-rent cause of action into a holdover cause of action. Commercial leases often contain a conditional limitation requiring the tenant to pay every month’s rent on time and in full and prohibiting any set-off against the rent. When a commercial lease contains a conditional limitation to pay rent, the landlord is not limited, as a landlord would be in a residential proceeding, to a nonpayment proceeding if the tenant defaults in paying rent. The landlord may take the aggressive approach in serving a cure notice and then a termination notice and commencing a holdover proceeding. Unlike a nonpayment proceeding, in which the tenant can preserve the tenancy by paying the judgment for rent within five days after its issuance, once the tenancy is terminated the tenant cannot revive it or avoid eviction in a later holdover proceeding by making payment. A tenancy properly terminated in accordance with its terms cannot be revived, no matter how inequitable the result.

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(D) Other Monetary Relief in Summary Proceedings

    

The two main forms of ancillary relief commonly awarded in summary proceedings are legal fees and use and occupancy.

Other than the principal relief sought in a summary proceeding ― a judgment of possession and warrant of eviction, and a corresponding money judgment for rent in a nonpayment proceeding ― the two main forms of ancillary relief commonly awarded in summary proceedings are legal fees and use and occupancy.

 

A landlord may recover legal fees from a tenant only when expressly authorized under a written lease. Commercial leases typically contain provisions authorizing the landlord to recover legal fees in the event of a tenant’s default or legal proceedings against the tenant. No reciprocity of these provisions, unlike those in residential leases, arises in commercial leases. When a lease contains this provision, a prevailing landlord may recover reasonable legal fees from a losing tenant, but the reverse will not be true. In limited circumstances, a lease may provide that the prevailing party in a legal proceeding may recover legal fees from the losing party.

 

Although not expressly provided for in RPAPL Article 7, courts adjudicating summary proceedings may award ancillary judgments for reasonable legal fees, and they almost always will if the landlord prevails and demonstrates its legal entitlement to the fees under the lease.

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When there is an entitlement to recover legal fees, the normal practice is that, upon prevailing, the prevailing party makes a post-judgment motion for an ancillary award of legal fees, or the fees may be awarded as part of a stipulation of settlement.

 

Although a tenancy does not terminate in a nonpayment proceeding until the issuance of the warrant of eviction, it terminates in a holdover proceeding on the termination date in the termination notice. Notwithstanding the monthly rent in the parties’ lease or rental agreement due from the tenant during the tenancy, a petitioner in a summary proceeding may seek an award for the fair-market value of use and occupancy for the period after the termination of the tenancy for which the tenant remains in possession, so long as the notice of petition recites that the landlord will seek this relief.

 

Regardless of the rent reserved in the lease, post termination use and occupancy is not contractual but rather grounded in quantum meruit and is calculated on the fair-market rental value of the premises while the respondent remains in possession after the tenancy is terminated.

 

Separate and apart from a money judgment for the fair-market value of post-termination use and occupancy is a statutory provision providing for payment of pendente lite use and occupancy while a New York City summary proceeding is pending. This provision, RPAPL 745(2), known as the Rent Deposit Law, was enacted as part of the Legislature’s 1997 overhaul of the rent laws. It applies to nonpayment and holdover proceedings.

 

The Rent Deposit Law requires the summary-proceeding court, after the sooner of the second adjournment granted at the respondent’s request or 30 days after the parties’ first court appearance (less any days the proceeding has been adjourned at the petitioner’s request), to direct, at the petitioner’s request, that the respondent deposit into court all use and occupancy accruing since service of the notice of petition and petition and coming due thereafter. The deposit must be made unless the respondent can establish at an immediate hearing to the court’s satisfaction that (i) the court lacks jurisdiction, (ii) the respondent was actually or constructively evicted from the premises, or (iii) the petitioner lacks standing to maintain the proceeding.

 

The Rent Deposit Law also requires, if the respondent fails to comply with the court’s order to pay use and occupancy under this provision, that the court strike the respondent’s answer and award judgment in the petitioner’s favor on default.

 

Sums a court directs to be paid as pendente lite use and occupancy under the Rent Deposit Law will presumptively be at the rate of the last monthly rent in the lease (unless the petitioner seeks a hearing to get a higher market rate). They are paid without prejudice to the parties’ claims and defenses, including the petitioner’s claim for rent arrears and the respondent’s defense or counterclaim for a rent abatement in a nonpayment proceeding and without prejudice to the petitioner’s right to seek full-market value use and occupancy upon final disposition of the proceeding.

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Courts do not always strictly enforce RPAPL 745(2). Even after a case is adjourned twice or more at the tenant’s request or has been pending for over 30 days, the court may direct payment of one month’s rent as use and occupancy, or a specific number of months, rather than all the use and occupancy that has accrued since the commencement of the case and all ongoing use and occupancy while the proceeding is pending.

 

Conversely, courts may order a tenant to pay use and occupancy dating back to before the proceeding commenced if the amount in arrears is not in dispute. In directing payment of use and occupancy, courts might not wait until after 30 days or the respondent’s second requested adjournment.

 

Despite the statutory language that payments under this provision be deposited into court, judges frequently order that use and occupancy payments be made directly to the landlord. Also, as a practical matter due to the logistical difficulty of withdrawing money deposited into court, tenants will often consent to pay the landlord directly instead of depositing payments into court.

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(E)Reverse Holdover Proceedings: Alleged Illegal Lockouts

Almost all commercial holdover proceedings involve a landlord as the petitioner seeking to recover possession from a respondent-tenant whose lease or rights to possession are alleged to have been terminated or expired. But a commercial tenant that has been illegally locked out or physically evicted from the premises by a landlord’s resort to self-help without legal process may commence an illegal lockout proceeding under RPAPL 713(10).

 

Illegal-lockout proceedings are reverse holdover proceedings commenced by tenants against landlords. They are summary proceedings to recover possession from an occupant (in this case the landlord) that lacks a legal right to continued possession. No predicate notice is required to maintain an illegal lockout proceeding, but most or all the pleading and procedural requirements and defenses that apply to holdover proceedings by landlords against tenants apply with equal force to lockout proceedings commenced by tenants. Although summary proceedings commenced by landlords almost always begin by notice of petition and petition, illegal-lockout summary proceedings almost always begin by order to show cause.