RECITATION AS REQUIRED BY CPLR §2219(A) OF PAPERS CONSIDERED IN THE REVIEW OF PETITIONER’S MOTION PURSUANT TO CPLR §3217(b) PERMITTING PETITIONER TO DISCONTINUE THIS PROCEEEDNG AND RESPONDENTS’ CROSS-MOTION PURSUANT TO CPLR §3211(7) TO DISMISS PETITIONER’S COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION, AMENDING THE PETITION TO NAME “JOHN DOE” AND “JANE DOE”, RESTORING RESPONDENTS TO POSSESSION OF THE PREMISES, ISSUSING A JUDGMENT OF POSSESSION AND WARRANT OF EVICTION AGAINST PETITIONER, “JOHN DOE” AND “JANE DOE” AND ISSUING A MONEY JUDGMENT FOR USE AND OCCUPANCY PAPERS: NUMBERED NOTICE OF MOTION, AFFIRMATION, AFFIDAVIT & EXHIBITS 1-7;A-B NOTICE OF APPEARNCE AND CROSS-MOTION, AFFIRMATION & EXHIBITS 1-5;C-E AFFIRMATION IN OPPOSTION TO CROSS-MOTION & EXHIBITS 1-7;A-E DECISION/ORDER Petitioner commenced this illegal lock out proceeding by Order to Show Cause dated June 4, 2021. Petitioner alleged she was illegally locked out of 136 East 38lh Street, New York, New York 10016 (“premises”). In her Affidavit in Support, Petitioner alleged that Respondents changed the locks on the door and she could no longer access the premises. The proceeding appeared on this Court’s calendar on June 7, 2021 and, during the conference, it became clear that Petitioner was in possession of the premises. In fact, Petitioner attended the virtual conference from the premises. On the initial return date, Petitioner was referred to a legal services provider and the case was the adjourned to June 22, 2021. Prior to the adjourned date, Petitioner and Respondents submitted the instant motion and cross-motion. Petitioner’s motion requests that this Court allow her to discontinue this proceeding as she had access to the premises. Respondents opposed Petitioner’s motion and cross-moved to dismiss Petitioner’s complaint for failure to state a cause of action, to amend the caption of the Petition to include a “John Doe” and “Jane Doe”, to restore Respondents to possession of the premises, to issue a judgment of possession and warrant of eviction against Petitioner, “John Doe” and “Jane Doe” and to issue a money judgment for use and occupancy. The Court conducted a virtual conference and heard oral argument on the motion and cross-motion on June 22, 202. Both parties appeared by counsel. Petitioner’s Motion to Discontinue the Proceeding This Court believes Petitioner’s motion to discontinue this proceeding is appropriate. The limited purpose of an illegal lock out proceeding is for the Petitioner to be restored to possession of the premises. Petitioner has stated that she is currently in possession of the premises. Moreover, Respondents concede that Petitioner is in possession of the premises as they have commenced an ejectment action in the Supreme Court, New York County by Summons With Notice dated June 16, 2021 entitled Wei Xiong v. Preethi Nath, Hamsa Nath and HRB Tax Group. Based upon these facts the Court grants the motion to discontinue pursuant to CPLR §3217(b). Respondents’ Cross-Motion to Dismiss the Complaint Respondents’ cross motion to Dismiss the Complaint is denied as moot. The Court has granted Petitioner’s motion to discontinue. Restore Respondents and Judgment of Possession against Petitioner Respondents’ cross-motion is denied. Respondents may not obtain a possessory judgment against Petitioner in this proceeding. Pursuant to Real Property Actions and Proceeding Law §741, to maintain a summary proceeding and obtain possession, the landlord must file a verified petition which specifically states the required elements mandated by RPAPL §741. While RPAPL §743 does allow for a party to assert a legal counterclaim in an Answer, it does not allow such party to circumvent the requirements of RPAPL, Article 7 and obtain a judgment of possession without a verified petition. Martinex v. Ulloa, 50 Misc3d 45, 467 (App. Term 2nd Dept 2015). It is clear to this Court that Respondents’ cross-motion improperly tried to circumvent the statue in an attempt to obtain a judgment of possession and warrant of eviction for the premises. Petitioner-tenant commenced the proceeding via Order to Show Cause in Lieu of Notice of Petition to Restore to Possession and Verified Petition in Support of an Order to Show Cause dated June 3, 2021. There is no verified petition filed by Respondent-Landlords. As summary proceedings mandate strict adherence to statutory requirements, MSG Pomp Cor v. Jane Doe, 185 AD2d 798, 586 NYS2d 965 (App Div 1st Dept 1992), and RPAPL requires a verified petition to obtain a judgment of possession, Respondent’s cross-motion must be denied. The Court also notes that Respondents have chosen their forum as stated above, Respondents commenced an ejectment action in the Supreme Court, New York County. Amend the Caption Based upon Respondents cross-motion being denied, Respondents’ cross-motion to amend the caption is denied as moot. Use and Occupancy Respondents’ cross-motion for use and occupancy is also denied. Respondents’ request is not in compliance with the Housing Stability and Tenant Protection Act of 2019 which allows the court to direct a payment of use and occupancy when there has been two adjournments or 60 days have passed since the first appearance on the parties. Wenyi Liang v. Tarantaol, 65 Misc3d 1231(A), 119 NYS3d 823 (2019). Lastly, as stated in Ulloa, supra., a claim for possession and use and occupancy should be tried together. The motion to discontinue is granted and the cross-motion seeking, inter alia, a judgment of possession and a warrant of eviction is denied. This constitutes the Decision and Order of this Court. Dated: June 22, 2021
