Court Denies Landlord's Request for Rent While Eviction Case Pending

Landlord sued to evict unregulated tenant and her adult son after sending a 30-day termination notice. After a number of adjournments, landlord asked the court to make tenant pay a rent deposit and/or use and occupancy while the case was pending.

The court ruled against landlord. Real Property Actions and Proceedings Law (RPAPL) Section 745(2)(a) requires the court to direct tenant to deposit with the court all rent and use and occupancy due "upon the second of two adjournments made at tenant's request, or upon the 30th day after the first court appearance minus any days that the proceeding was adjourned at landlord's request, whichever occurs sooner." Adjournments that the parties consent to don't count toward the two adjournments stated in the statute and can't be charged against tenant with regard to the running of the 30 days. In this case, the first adjournment was by two-attorney stipulation. The second adjournment was made by the court to refer tenant to Adult Protective Services. The third adjournment was again made by the court while waiting for a psychiatric evaluation of tenant. The fourth adjournment was made by two-attorney stipulation. The following two adjournments were made on consent since the court file didn't indicate that they were made at tenant's request.

So, there was no basis to order a rent deposit or money judgment under RPAPL Section 745. And, since use and occupancy in an eviction proceeding must be sought within the confines of RPAPL Section 745, the court denied landlord's request for use and occupancy pendente lite. Landlord could renew its application upon any future adjournments that would trigger RPAPL Section 745(2)(a).

Rogers v. Payne: 2019 NY Slip Op 51566(U) (Civ. Ct. Queens; 9/20/19; Guthrie, J)