Landlord Amended Eviction Petition Based on Nonpayment After Tenant Moved Out

In March 2021, landlord sued to evict tenant for unpaid rent. It was undisputed that tenant thereafter surrendered possession of the property on June 2, 2021. In July 2021, landlord amended his court petition, seeking additional rent through the end of June 2021 but admitting that tenant had surrendered possession on June 2, 2021. After a trial in September 2021, the court granted landlord a money judgment for $9,000 for rent owed for periods through the date that tenant moved out. Landlord appealed, claiming that he was entitled to additional sums. The appeals court ruled against landlord and held, further, that landlord wasn't entitled to the money judgment he got because there was no simultaneous award of possession to the owner. The appeals court sent the case back for further ruling by the trial court.  

The trial court pointed out that a number of courts have ruled that a tenant's surrender of possession after an eviction proceeding is started does not remove the case from the court's jurisdiction to decide money claims relating to rent or use and occupancy. It just terminates the tenancy. But other courts have ruled that a money judgment in landlord's favor can only be made "concomitant with an award of possession" and therefore a money judgment in favor of a landlord without an accompanying award of possession is deemed to be "improperly entered." In this case, the landlord's abandonment or withdrawal of his demand for possession of the premises required dismissal under the "concomitant award of possession" rule followed by the appeals court in this case. Because the amended petition effectively involved abandonment of the landlord's original petition seeking possession, the court was now required to dismiss the case.

Felsenfeld v. Rogers: Index No. 21030033 (27-21), 2023 NY Slip Op 23065 (Just. Ct. Ossining; 3/9/23; Gasbarro, J)