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(347)-508-9316The Oxford Language Dictionary defines “concomitant” as meaning “naturally accompanying or associated, following or accompanying as a consequence”. Adjectives include accompanying, attendant, consequent, corollary, ensuant, incidental and resultant. For instance, Concomitant drugs are two or more drugs used or given at or almost at the same time (one after the other, on the same day, etc). In the realm of Landlord Tenant law, this comes into play in non-payment summary proceedings (not in holdovers) wherein monetary awards for rental arrears are given concomitant with awards of possession. Hand-in-hand, possession-and-judgment. But what happens in circumstances wherein a tenant vacates the premises during the pendency of a non-payment summary proceeding, thereby rendering the need for an award of possession moot? Can the matter proceed toward a monetary award alone without the need for possession?
Patchogue Assoc. v Sears, Roebuck & Co., 37 Misc 3d 1, 951 NYS2d 314 (App. Term, 2nd Dept., 2012) gives some historical insight to the discussion:
“The Legislature created summary proceedings in 1820 in order to give landlords a ‘simple, expeditious and inexpensive means of regaining possession of a premises in cases where the tenant refused upon demand to pay rent, or where he wrongfully held over without permission after the expiration of his term’. Dolan v Linnen, 195 Misc.2d 298, 309 (Civ. Ct., Richmond County 2003), quoting Reich v. Cochran, 201 NY 450, 454 (1911])”. “While, initially, it could be determined that rent was due and unpaid in a summary proceeding, no money judgment for rent could be awarded. It was not until 1924 that an amendment to the Civil Practice Act allowed the recovery of rent in a summary proceeding, so long as certain conditions were met (see Dolan, 195 Misc.2d at 309-310). Even now, generally, “a monetary award in favor of landlord can only be made concomitant with an award of possession” in a summary proceeding (615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1, 4 [App Term, 2d & 11th Judicial Districts, 2006])”.“Regardless of a landlord’s intent, the purpose of a nonpayment summary proceeding is to recover possession of the subject premises, and the power to fix the rent due is an incidental matter” (Matter of Byrne v Padden, 248 NY 243, 248 [1928]; cf. Jones v Gianferante, 305 NY 135, 139 [1953] [‘This summary proceeding . . . is of purely possessory character . . .’])”.
Patchogue tells us that the ultimate goal of a summary proceeding is always to recover possession- to get the tenant(s) out- regardless of what else is being asked from the Court. Rent is incidental to possession. Therefore, it naturally follows that if possession has already been tendered back to the landlord, the summary proceeding is no longer necessary. This makes an award for monetary damages secondary to an award for possession. Without the latter, there is no need for the former.
Other Appellate Term decisions have held true to this logic.
“Landlord is not entitled to an award for use and occupancy since, ‘in a summary proceeding, a monetary award in favor of landlord can only be made concomitant with an award of possession. Fieldbridge Associates, LLC v. Sanders, 70 Misc.3d 140(A) (App Term, 2d, 11th & 13th Jud Dists 2021).” “The Second Department has repeatedly concluded that in a summary proceeding, a monetary award in favor of a landlord can only be made concomitant with an award of possession. See, Felsenfeld v Rogers, 2022 NY Slip Op. 51143(U) (Appellate Term, Second Dep’t 2022) citing 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1, 832 N.Y.S.2d 379 (Appellate Term, Second Dep’t 2006), Javaherforoush v Sherrard, 74 Misc 3d 137(A) (Appellate Term, Second Dep’t 2022).” Fans Associates, LLC v. IM, 78 Misc.3d 1209(A) (Civil Court, Queens County 2023). “Landlord is not precluded from seeking rent in plenary action. 44th Street Photo, Inc., v. Abrams, 51 Misc. 3d. 144(A) (Appellate Term, Second Department, 9th and 10th Judicial Districts 2016).”
The practical result in favor of concomitant awards is that if a tenant vacates a premises during the pendency of a non-payment summary proceeding, thereby rendering the need for an award of possession moot, the Landlord would be required to withdraw the summary proceeding and recommence against the tenant(s) for monetary damages only in separate plenary action that does not require or seek a judgment of possession.
But the Appellate Terms have not been unanimous in their analysis of concomitant awards. In fact, in the years both before and after Patchogue, some Judges have found that the Court retains jurisdiction to issue monetary awards even in the absence of awards of possession.
“We note that, contrary to tenants’ claims, their surrender of possession after the commencement of the proceeding did not divest the court of jurisdiction. Sowalsky v. MacDonald Stamp Co., 31 A.D.2 582, 294 N.Y.S.2d 1016 (1968); Lido Realty, LLC v. Thompson, 19 Misc.3d 144(A), 867 N.Y.S.2d 17, 2008 N.Y. Slip Op. 51105(U) (App Term, 2nd & 11th Judicial Districts, 2008). “While a surrender of possession after a summary proceeding has been commenced terminates the tenancy, it does not divest the court of jurisdiction over the summary proceeding. Sowalsky (supra), Tricarichi v. Moran, 38 Misc.3d 31, 959 N.Y.S.2d 372 (App Term, 9th & 10th Judicial Districts, 2012), Bahamonde v. Grabel, 34 Misc.3d 58, 939N.Y.S.2d 226 (App Term, 9th & 10th Judicial Districts, 2011), 1129 N. Blvd., LLC v. Astra Group, Inc., 43 Misc.3d 137(A), 2014 N.Y.Misc. LEXIS 1981, 2014 NY Slip Op 50704(U), 992 N.Y.S.2d 159 (App Term, 2014). “Indeed, a landlord may obtain a money judgment against an appearing tenant in a summary proceeding even when a tenant’s surrender of possession of the premises after commencement of the proceeding renders possession moot. 1129 N. Blvd., LLC (supra), Tricarchi (supra), Bahamonde (supra), Abner Props. Co. v. Frederick Goldman, Inc., 57 Misc.3d 152(A), 72 N.Y.S.3d 516, 2017 NY Slip Op 51586(U) (App Term, 1st Dept. 2017); Mauer-Bach Realty LLC v. Gomez, 43 Misc.3d 141(A), 993 N.Y.S2d 664, 2014 NY Slip Op 50845(U) (App Term, 1st Dept. 2014), Harbor Tech LLC v. Correa, 69 Misc.3d 969, 134 N.Y.S3d 652 2020 N.Y. Misc. LEXIS 7354, 2020 N.Y. Slip Op. 20261, 2020 WL 6066981 (2020). “When this proceeding was instituted the tenant was in possession. The court then had jurisdiction to entertain the proceeding and, jurisdiction over the subject-matter having once vested, was not divested by subsequent event, although of such character as would have prevented jurisdiction from attaching in the first instance. Mollen v. Torrance, 9 Wheat. 537, Wichita Railroad & Light Co. v. Pub. Util. Comm., 260 U.S. 48, Koppel v. Heinrichs, 1 Bard. 449”. Four Forty-One Holding Corp., v. Bloom, 148 Misc. 565, 266 N.Y.S 233, 1933 N.Y. Misc. LEXIS 1256 (1st Dept. 1933).
In the matter of Tzifil Relty Corp. v. Mazrekag, 78 Misc.3d 128(A), 185 N.Y.S.3d 486 (App. Term, 2023) the Appellate Term reinstated Petitioner’s claim for possession which had been dismissed by the lower court. In that matter, the occupant had vacated the subject property after the commencement of the summary proceeding. The lower court concluded that because the occupant had vacated the premises during the pendency of the proceeding, the Petitioner’s claim for possession had to be dismissed. In reinstating the Petitioner’s claim for possession, the Appellate Term held, “In a summary proceeding, the court retains jurisdiction to award possession even where the occupant vacates after the commencement of the proceeding (see 92 Bergenbrooklyn, LLC v. Cisarano, 50 Misc.3d 21 [App. Term, 2nd Dept., 2nd, 11th & 13th Judisicial Districts, 2015]). Thus, here, it was improper for the court to dismiss Petitioner’s claim for possession. As the Civil Court granted occupant’s motion to sever Petitioner’s claim for use and occupancy on the ground that a money judgment cannot be awarded in a summary proceeding without a concomitant award of possession (see 615 Nostrand Ave. Corp. v. Roach, 15 Misc.3d [App. Term, 2nd Dept., 2nd, 11th & 13th Judicial Districts, 2006]; Fieldbridge Assoc., LLC v. Sanders, 70 Misc.3d 140[A], 2021 N.Y. Slip Op 50128[U] [App. Term, 2nd Dept., 2nd, 11th & 13th Judicial Districts, 2021]; Patchogue Assoc. v Sears, Roebuck & Co., 37 Misc 3d 1, 951 NYS2d 314 [App. Term, 2nd Dept., 2012], and since the dismissal of the claim for possession was improper, there was no basis to sever Petitioner’s claim for use and occupancy.”
In 2021, 397 E. 49th St. LLC v. Iglesias, 71 Misc. 3d 1216(A) (N.Y. City Civ. Ct., 2021) was a spark that re-ignited the legal conversation around concomitant awards, circling-back to the line of thinking set forth in Patchogue (supra). “This is a nonpayment proceeding commenced in 2019 and first appearing on the Court calendar on December 10, 2019… Nevertheless, the parties agree that respondents have vacated the premises and that petitioner is back in possession of the subject premises…The issue actually before the Court is whether the Court maintains jurisdiction to possibly issue a money judgment for arrears in light of repossession of the premises by petitioner during this proceeding… Recently the Appellate Term Second Department in two separate cases ruled that once a Judgment of possession issued leading to eviction of a tenant, the Court no longer maintained jurisdiction to amend the judgment to include a monetary judgment, see Lee v Green World Cleaners 1, LLC, 61 Misc 3d 155(A) (2018); Goldburd v Langer, 62 Misc 3d 140(A) (2019). Petitioner’s Counsel attempts to draw a distinction between proceedings where a Judgement of Possession has already been obtained and the repossession has occurred (either through surrender or eviction) and proceedings where the tenant voluntarily vacates a premises during the proceeding without a post-trial judgment or stipulated judgment of possession being reached. The Court rejects this distinction (to distinguish a voluntary surrender from this appellate posture would have a chilling effect on voluntary vacatures as the tenant would have no impetus to surrender if the current litigation simply continued. Furthermore it would have a chilling effect on settlements further clogging the courts especially during and after the Covid epidemic). To best understand why the ‘termination’ of a summary proceeding should occur whether a tenant is forcibly removed from possession or voluntarily surrenders during the proceeding requires a focus on the history of the summary proceeding as well as the purpose of a nonpayment proceeding” (the Court goes on to cite Patchogue Assoc. v Sears, Roebuck & Co., 37 Misc 3d 1, 951 NYS2d 314 [App. Term, 2nd Dept., 2012]).
In the few years following Iglesias, there continues to be disjointedness between the Courts on the issue of concomitant awards. Some Judges are finding reasons to hold on to cases (citing their ability to retain jurisdiction) while others are aggressively trying to get rid of them (citing, i.e., Patchogue). However, there has been a clear trend in the direction of requiring concomitant awards and directing that landlords commence plenary actions for monetary awards where possession is not in issue. Although there has been no official ruling, the practical reason for this trend appears to be that the overwhelmed Landlord/Tenant courts have found an easy way to lighten their dockets: by off-loading non-possessory cases to other courts (Landlord Tenant courts have found other ways to lighten their loads as well- in 2023, the New York City Courts dismissed more than 120,000 active pending eviction cases in one fell-swoop, describing them as “administrative dismissals”, for cases commenced prior to 2020 for non-payment of rent, in which tenants never Answered or appeared, but the Plaintiffs took no further action during the COVID pandemic. Attorneys for both landlords and tenants said they hope the administrative dismissal will take some pressure off of court staff and help them work more efficiently. “They’re so short-staffed that to have clerks have to track or figure out what to do with cases that clearly have been abandoned seems like an extra burden that they don’t need right now,” said Deborah Riegel, an attorney with Rosenberg & Estis, P.C. “I think this is probably a good exercise in clearing out cases that nobody should have to monitor or track”).
