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Scott E. Mollen Scott E. Mollen

Commercial Landlord-Tenant—RPAPL Amendments—Landlord’s Oral Request for Use and Occupancy (U&O) in Commercial Non-Payment Proceeding Denied—Courts May No Longer Strike Pleadings Based on Failure To Pay U&O—Immediate Trial is the New Remedy for Failure To Pay U&O—U&O No Longer Available From the Date of the Petition—Available Only From the Date of the Court’s Order

A landlord commenced a commercial non-payment proceeding against its tenant for unpaid rent on July 25, 2019. The tenant filed an answer on Sept. 20, 2019. The tenant alleged a “lack of personal jurisdiction defense.” The case was scheduled to be heard for the first time, on Oct. 1, 2019. The landlord and the tenant appeared. The tenant requested an adjournment to Nov. 4, 2019 for the purpose of hiring an attorney. The landlord consented only to an adjournment to Oct. 21, 2019, 20 days later. The court granted the tenant’s request and adjourned the case for a traverse hearing to Nov. 4, 2019, over the landlord’s objection. Based on the adjournment, the landlord made an oral motion to the court requesting U&O pursuant to Real Property Actions and Proceeding Law (RPAPL). It requested U&O from the date of the petition. The court denied the landlord’s motion.

The court explained that the landlord had “erroneously relied on the prior iteration of the RPAPL in its present application for use and occupancy.” Here, the landlord had only made an oral application for U&O when RPAPL §745(2)(a) “now requires that requests for (U&O) be made ‘upon a motion on notice made by petitioner.’” Thus, the court held that the landlord’s motion was “not properly before the court.”

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