DECISION/ORDER Petitioner filed this commercial non-payment proceeding against Respondent for unpaid rent on July 25, 2019. Respondent filed an answer on September 20, 2019, in which he alleged a lack of personal jurisdiction defense. The case was scheduled to be heard for the first time, on October 1, 2019 before the Honorable Marissa Soto. Petitioner appeared by counsel, Lawrence C. McCourt of Heiberger and Associates, P.C. and Respondent appeared pro se. Respondent requested an adjournment to November 4, 2019 for the purposes of obtaining an attorney. Petitioner consented only to an adjournment to October 21, 2019, twenty (20) days later. The Court granted Respondent’s request and adjourned the case for a traverse hearing to November 4, 2019, over Petitioner’s objection. In response to the adjournment, Petitioner made an oral application to the Court requesting use and occupancy pursuant to the Real Property Actions and Proceedings Law (hereinafter “RPAPL”) asking for use and occupancy from the date of the petition. The Court reserved decision on the use and occupancy application. The Court now denies Petitioner’s application based on the following: The instant matter was commenced after the most recent amendments and changes to the RPAPL took effect on July 14, 2019, However, Petitioner erroncously relied on the prior iteration of the RPAPL in its present application for use and occupancy. For example, the Petitioner only made its application for use and occupancy orally when RPAPL §745(2)(a) now requires that requests for use and occupancy be made “upon a motion on notice made by petitioner”. Therefore, the application was not properly before the Court. RPAPL §745(2)(a)(vii) also provides that: “The court shall not order deposit or payment of use and occupancy where the respondent can establish, to the satisfaction of the court that respondent has properly interposed one of the following defenses or established the following grounds: the court lacks personal jurisdiction over the respondent.” (emphasis added). Respondent, in his answer and in open court, interposed the defenses of lack of personal jurisdiction and therefore Petitioner’s application for use and occupancy is not available in this case. Even assuming arguendo that the Court waives the motion on notice and finds the Respondent’s personal jurisdiction defense insufficiently substantiated, RPAPL §745(2)(a) states that:”…the court may, upon consideration of the equities, direct that the respondent, upon a motion on notice made by the petitioner, deposit with the court sums of rent or use and occupancy that shall accrue subsequent to the date of the court’s order….” (emphasis added). Therefore, Petitioner’s request for use and occupancy from the date of the Petition is no longer possible under the RPAPL. Further, Petitioner argued that if Respondent failed to pay use and occupancy as ordered, since Petitioner believed the RPAPL required it be granted the relief it requested, he could make a motion to strike Respondent’s answer. This is incorrect. RPAPL §745(2)(d)(i),(ii) provides that: “In the event that the respondent fails to deposit with the court or pay, as the case may be, upon the due date, all rent or use and occupancy which may become due subsequent to the issuance of the court’s deposit order, the court upon an application of the petitioner may order an immediate trial of the issues raised in the respondent’s answer. An “immediate trial” shall mean that no further adjournments of the proceeding upon respondent’s sole request shall be granted, the case shall be assigned by the administrative judge to a trial ready part and such trial shall commence as soon as practicable and continue day to day until completed. The court may extend any time provided for such deposit under this subdivision for good cause shown.” It should be noted that the ability to strike pleadings due to a failure to pay use and occupancy has been removed and immediate trial is the new remedy for failures to pay use and occupancy. Due to the foregoing, the Court denies Petitioner’s oral application for use and occupancy and arguments regarding the mandatory nature of such relief without prejudice. This constitutes the decision and order of the Court. Dated: October 7, 2019
