Recitation, as required by CPLR §2219(a), of the papers considered in review of the instant motion:Papers NumberedOrder to Show Cause, Affirmation, Affidavit and Annexed (Ex. A) 1Affirmation in Opposition and Annexed (Ex. A-D) 2DECISION/ORDER Upon review of the foregoing cited papers and after oral argument, the Decision/Order on this motion is as follows:In this holdover proceeding, Petitioner seeks possession of the alleged unregulated apartment on the basis that Respondent failed to surrender possession of the apartment upon expiration of his lease.This matter first appeared on the court’s calendar on December 19, 2018 and, upon Respondent’s application, was adjourned until January 25, 2019 for Respondent to obtain counsel. Upon granting the application, the court directed Respondent to file an answer by January 14, 2019. On January 25, 2019, Respondent appeared with counsel, who requested another adjournment. Thereupon, the parties entered in a stipulation, in which the case was adjourned until March 6, 2019 and Respondent agreed to file an answer or make any intended motion by February 15, 2019.At the court appearance on March 6, 2019, Respondent filed an answer, alleging, inter alia, that the apartment was unlawfully deregulated and rent overcharge. Respondent then requested a third adjournment in contemplation of making a motion to dismiss the petition and/or for discovery. Petitioner opposed the application and alternatively requested payment of accrued and prospective use and occupancy pendente lite pursuant to RPAPL §745(2)(a). In addition, in the event of Respondent’s default in making payments, Petitioner requested application of the remedies provided under RPAPL §745(2)(c). The court granted Respondent’s application and the case was adjourned until April 24, 2019. The court also granted Petitioner’s applications relating to payment, and default in payment, of use and occupancy under RPAPL §745(2). Respondent was directed to pay accrued use and occupancy from December 2018 through March 2019, at the expired lease rate ($2,300.00 monthly), totaling $9,200.00, by March 18, 2019 as well as use and occupancy for April 2019 by April 10, 2019.On March 18, 2019, Respondent filed the instant order to show cause, seeking an extension of time to pay the ordered use and occupancy of $9,200.00 and seeking modification of the court’s use and occupancy ruling to the extent of allowing Respondent to pay $4,600.00 forthwith and the balance of $4,600.00 by March 28, 2019, which was the motion return date. In his affirmation in support, Respondent’s counsel states, “[w]e are not challenging the Order but merely seeking a modification to allow Mr. Kolaitos to comply with the Order. Because of family emergencies he did not have $9,200.00 immediately available. Mr. Kolaitos is a man of modest means but is able to pay $2,300.00 going forward.” In his affidavit, Respondent also attempted to justify his default by making the vague and unsupported statement that “family emergencies prevented me from timely paying the ordered amount.” The only submitted proof of Respondent’s ability to pay $4,600.00 forthwith was a copy of a personal check in that amount from a third party, which depicted the subject apartment as her residence.Upon signing the order to show cause, the court directed Respondent to bring the use and occupancy ordered by the court on March 6, 2019 to court on the motion return date.At oral argument of the motion on March 28, 2019, Respondent attempted to tender a third-party personal check for the entire sum due March 18, 2019 ($9,200.00) as ordered by the court. However, Petitioner rejected the payment, arguing that it was inexcusably late. Lateness notwithstanding, Petitioner also argued that accepting use and occupancy payments from an unknown third-party, who claimed occupancy by depicting the apartment address on the face of the check, would be prejudicial to Petitioner since the act of acceptance may be construed as establishing a landlord-tenant relationship. Petitioner also submitted opposition papers and argued for strict application of RPAPL §745(2) with regard to the consequential relief to which Petitioner is entitled upon default in payment of the use and occupancy ordered by the court.Pursuant to RPAPL §745(2)(a), a petitioner may seek accrued and prospective use and occupancy after a respondent has requested two adjournments or, after the thirtieth day following the first court appearance, less any days that the matter was adjourned at the petitioner’s request, whichever occurs sooner. Shoshany v. Goldstein, 20 Misc.3d 687 (Civ. NY2008).Furthermore, RPAPL §745(2)(c)(i) provides, in pertinent part, that should Respondent“fail to comply with the court’s directions with respect to direct payment to the petitioner or making a deposit as directed by the court of the full amount of the rent or use and occupancy required to be deposited, the court upon an application by petitioner shall dismiss without prejudice the defenses and counterclaims interposed by the respondent and grant judgment for petitioner unless respondent has interposed the defense of payment and shows that the amount to be deposited has previously been paid to the petitioner.”Thus, the court’s discretion is restricted by the unambiguous language of RPAPL §745(2)(c)(i). See also, RPAPL §745(2)(c)(iii), which states that “[t]he court shall not extend any time provided for such deposit under this subdivision without the consent of the petitioner;” and RPAPL §745(2)(c)(v), which states that “[t]he provisions of this paragraph requiring the deposit of rent or use and occupancy as it becomes due shall not be waived by the court.”Appellate courts have upheld the strict interpretation of this statute. See, Houston Essex Realty Corp. v. Club Old Banque Corp., 2 Misc.3d 138A (App. Term 1st Dept. 2004), in which a tenant appealed from a Civil Court Order that granted the landlord’s motion to strike the answer and for a judgment of possession in a holdover proceeding. In affirming the Civil Court’s determination, the Appellate Term held that the Civil Court properly granted judgment in favor of the landlord pursuant to RPAPL §745(2)(c)(i), given the tenant’s failure to timely comply with two prior orders for payment of ongoing use and occupancy, and its tender of a check which was returned for insufficient funds. The Appellate Term, citing RPAPL §745(2)(c)(iii), further held that the Civil Court was not authorized to extend the time for payment without consent and that the landlord’s acceptance of a late use and occupancy payment did not waive its rights under the statute.See also, 169, LLC v. Bowery Dev. Group, LLC, 28 Misc.3d 130A (App. Term 1st Dept. 2010, where the Appellate Term, citing RPAPL §745(2)(c)(i) and Houston Essex Realty Corp. v. Club Old Banque Corp., supra., held that “no basis has been shown to disturb the final judgment awarded to landlord in this holdover proceeding. Upon the commercial tenant’s failure to timely comply with two court orders for payment of interim use and occupancy, [the] Civil Court properly granted judgment for the landlord.” Id.RPAPL §745(2) may even restrict the court’s inherent power to exercise its discretion to grant a stay of proceedings for good cause shown under CPLR §2201, as this statute may preempt the provisions of CPLR §2201. See, Scherer, Residential Landlord-Tenant Law in New York Section 14:12 (2018). However, this Court need not address this issue, since Respondent did not demonstrate good cause for defaulting in twice ordered payments, in that he did not submit any proof of his assertion that “family emergencies” prohibited him from making of the payment and/or why it was necessary for tender to be made by a third party.It is undisputable that the March 6, 2019 application was Respondent’s third and that at least 30 days has elapsed since the first court date on delays for Respondent’s benefit. Adjournments to obtain counsel are specifically not excluded from the temporal calculations. RPAPL §745(2)(a)(iv).Based on the foregoing, Respondent’s’ motion is denied and Petitioner’s application, at oral argument, seeking an Order, pursuant to RPAPL §745(2)(c)(ii), is granted. Accordingly, Respondent’s defenses and counterclaim are hereby dismissed without prejudice and Petitioner is awarded a final judgment of possession against Respondent. Issuance of the warrant of eviction forthwith. Execution of the warrant is stayed through July 31, 2019 for Respondent to vacate, provided that Respondent pays accrued use and occupancy through April 2019 in the amount of $11,500.00 by April 30, 2019 and ongoing use and occupancy pendente lite in the amount of $2,300.00 by the 10th of each month from May 2019 through July 2019. Upon default, warrant may execute after service of a marshal’s notice.In light of this Decision and Order, the previously scheduled court date of April 24, 2019 is hereby vacated.The Court’s holding herein does not deprive Respondent from filing a complaint with the New York State Division of Homes & Community Renewal (“DHCR”) relating to her unlawful deregulation and rent overcharge claims as provided by RPAPL §745(2)(e).This constitutes the Decision and Order of this Court.Dated: April 19, 2019New York, New York
