DECISION AND ORDER In this commercial summary proceeding for non-payment1 and possession, a trial was held on June 3, 2019, at which time the Court reserved decision and afforded both parties the opportunity to submit post trial memoranda. BackgroundPetitioner originally commenced a previous summary proceeding (“The First Proceeding”), seeking the same relief as in the present case, on or about January 2, 2019. The Court (Carbone, J.) dismissed the action without prejudice, by decision and order dated April 1, 2019. Petitioner subsequently commenced the instant proceeding.At the trial, the following was received into evidencePetitioner’s Exhibit 1, Lease between the Parties, dated7/31/17 for a two-year, one month termPetitioner’s Exhibit 2 Rent Ledger for the months of 10/1/18 through 6/1/19Respondent’s Exhibit A Notice of Petition and Petition, dated 2/8/19 and Three Day Notice to Pay (“The Second Proceeding” or “Instant Proceeding”)Respondent’s Exhibit B-1 Photo of mice droppings on window sillExhibit B-2 Photo of water leak stainsExhibit B-3 Photo of cockroach in premisesRespondent’s Exhibit C Notice of Petition and Petition, dated1/2/19 (“The First Proceeding”)Respondent’s Exhibit D-1 Letter dated 7/31/18 from respondent to petitioner requesting modification of leaseExhibit D-2 Letter dated 10/13/18, regardin©) 12/31/18 vacature of the premises.Respondent’s Exhibit E Copy of text message, dated 1/7/19 between respondent and “Judy” the super, advising of 1/6/19 vacatur of premisesFACTSThe credible facts adduced at the non-jury trial, established the following facts, which are largely undisputed:Petitioner leased commercial premises to respondent, non-profit 501-c organization for a term beginning July 1, 2017 and ending on July 31, 2019 with an initial monthly rent of $1,300.00 per month. The lease called for a monthly rental of $1,339.00 for the second year and $1,378.00 for the third year. Respondent testified that petitioner had originally promised them a particular office suite which respondent was unable to deliver. Due to the substitution, respondent tried to “break” the lease, but was unsuccessful in doing so.Respondent testified that she communicated directly with the superintendent, “Joe” by text regarding the problems they were experiencing at the premises, such as roof leaks, and bug infestation. Photos of the conditions were received into evidence detailing the conditions during the Spring and Summer of 2018. When the superintendent passed away, his widow, “Judy” took over his responsibilities and respondent communicated with her regarding matters involving the premises.Due to loss of a significant grant and donor funding, the respondent requested a modification of the lease, (Exhibit C), which was denied. Subsequently, respondent sent petitioner a letter (Exhibit D), announcing their decision to vacate by the end of December, 2018.On January 6, 2019, the respondents vacated the premises, one day after the superintendent, “Judy” informed them that the petitioner had filed a non-payment proceeding against them. (“The First Proceeding”). This text exchange was memorialized in a copy of the text message set forth in Respondent’s Exhibit E.After the first petition was dismissed without prejudice and respondent vacated the premises, the petitioner filed the instant non-payment proceeding seeking the same relief.CONCLUSIONS OF LAWPetitioner claims that respondent never properly terminated the lease, citing the fact that t the keys were never turned over and that the superintendent, “Judy” lacked any authority to accept a surrender of the premises.The un-rebutted testimony demonstrated that the respondent vacated the premises after the first non-payment petition was filed on January 2, 2019 and that the first non-payment petition was dismissed without prejudice.“[A] summary proceeding, being a possessory remedy, lies only against the tenant in possession and those in possession under the tenant”, Park Prop. Dev. v. Santos, 1 Misc3d 16, 767 NYS2d 558, citing Euclid Holding Co. v. Schulte, 153 Misc 455, 461, revd on other grounds, 153 Misc 455, 461 (1934). To maintain a summary non-payment proceeding, an essential jurisdictional element requires that the respondent be in possession of the premises when the proceeding is commenced. First National City Bank v. Wall Street Leasing Corp., 80 Misc2d 707, 363 NYS2d 699 (1974). The overwhelming evidence in the instant case established that the respondent vacated the premises prior to the filing of this action, thus divesting this Court of jurisdiction.Petitioner’s argument that there was no proper relinquishment by tenant and acceptance by the landlord constituting a valid surrender goes to the parties’ substantive rights under the lease and misses the point. The issue here is purely jurisdictional and this Court cannot address the merits of the case. Simply put, a summary proceeding cannot lie where respondent did not physically possess the premises when the proceeding was commenced. The Court does note that petitioner is not without further remedy as it may seek relief in another forum under the terms of the lease.2Accordingly, the matter is dismissedThe foregoing constitutes the Decision and Order of the Court.Dated: July 8, 2019New Rochelle, New York
