Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion, Affidavit, and Exhibits 1-5 Affirmation in Opposition, Affidavit, and Exhibits 6-9 Papers Considered: (NYSCEF Doc Nos. 7 through 17) DECISION/ORDER Facts and Procedural History On December 28, 2022, Petitioner commenced this nonpayment proceeding against Respondent. On January 25, 2023, Respondent filed a pro se answer and subsequently retained counsel. On May 10, 2023, the parties settled this matter via two-attorney court stipulation, whereby the parties agreed, among other things, that $12,532.50 is due and owing through May 31, 2023, and Respondent agreed to pay said amount by June 30, 2023 (NYSCEF Doc. No. 10). Petitioner now moves to restore the case, amend the petition to date, for a judgment and warrant due to Respondent’s failure to comply with the terms of the settlement. Respondent opposes the application. In opposition, Respondent avers that on May 30, 2023, he vacated the premises and surrendered the subject premises by returning the keys to Petitioner. The parties also signed a Notice of Intent to Vacate (NYSCEF Doc. No. 16). Petitioner does not dispute that Respondent vacated and surrendered the subject premises. The primary “purpose of a nonpayment summary proceeding is to recover possession of the subject premises” and the power to fix the outstanding rent is an incidental. (See Patchogue Assoc. v. Sears, Roebuck & Co., 37 Misc 3d 1, 4 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). A monetary judgment can only be awarded when made concomitant with an award of possession. (See Carney Realty Corp. v. Elite Tent & Party Rental, 73 Misc 3d 141 [A] [App Term, 2d Dept 2021]; Javaherforoush v. Sherrard, 74 Misc 3d 137[A] [App Term, 2d Dept 2022]). Here, it is undisputed that Respondent vacated the premises already. There is no longer an issue of possession. Consequently, this Court does not have the authority to enter a monetary judgment. (See Ahmed v. Mohammed, 77 Misc 3d 1213[A] [Civ Ct, Queens County 2022]; 397 E. 49th Street LLC v. Iglesias, 71 Misc 3d 1216[A] [Civ Ct, Kings County 2021]). Based on the foregoing, Petitioner’s motion is denied in its entirety, and the proceeding is dismissed without prejudice for Petitioner seeking its monetary claims in a plenary action and subject to Respondent’s defenses. This constitutes the Decision and Order of this court. Dated: April 30, 2024
