Landlord's Request for Use and Occupancy Pendente Lite Was Premature

Landlord sued to evict apartment occupant, who was tenant's grandson, after rent-stabilized tenant died and his lease had expired. The first court date was June 22, 2023, and the case was adjourned by the court to Sept. 14, 2023, to permit the grandson to consult with legal services attorneys. On Aug. 31, 2023, landlord filed a motion requesting that the grandson pay use and occupancy while the case was pending. The court denied landlord's request, stating that it was premature. RPAPL Section 745(2) permits collection only after the second of two adjournments granted solely at the request of the respondent, or upon the 60th day after the first court appearance minus any days that the case had been adjourned at the petitioner's request. Here, the case was adjourned only once and at the court's request. And 60 days hadn't expired. Landlord argued that it could request u&o on an equity basis distinct from RPAPL Section 745(2). The court disagreed and ruled that RPAPL 745(2), as amended in 2019, was the only vehicle for obtaining u&o in a summary eviction proceeding while the case was pending. Landlord could file another motion request for u&o following the 60th day after June 22, 2023.

357 Realty Corp. v. Franco: Index No. LT-310457-23, 2023 NY Slip Op 23284 (Civ. Ct. NY; 9/20/23; Bacdayan, J)