Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion for an order granting leave to reargue the Court’s decision/order dated May 4, 2018.Papers NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits 2Replying Affidavits 3ExhibitsOtherDECISION/ORDER Upon the foregoing papers, the Decision / Order on this motion is as follows:BackgroundPetitioner commenced the instant lease expiration holdover proceeding by notice of petition and petition in November 2016. Respondent interposed an answer alleging, among other things, that the subject building contains six or more apartments therefore she is rent stabilized. By order dated January 11, 2017 the court (J. Pinckney) directed respondent to pay January’s use and occupancy of $1,200.00 by January 25, 2017 and ongoing use and occupancy by the 10th of each month. On April 12, 2017, the Hon. Jose Rodriguez granted respondent’s motion for discovery and marked the case calendar pending conclusion of same. At some point thereafter petitioner became aware that respondent vacated the premises although she retained the keys. Respondent also failed to pay the use and occupancy for January and February 2018. On March 19, 2018 petitioner moved for a money judgement for unpaid use and occupancy and to strike respondent’s defenses and counterclaims. Respondent Cross-moved to compel discovery. The following day the parties entered into a stipulation whereby respondent surrendered the keys to the premises without prejudice to the instant proceeding. On May 4, 2018, the Court granted the motion to extent of awarding petitioner a judgment for January and February’s use and occupancy totaling $2,400.00. In so doing, the Court declined to award a judgment for pre-petition rent which is still in dispute. The Court also denied the cross-motion. Respondent now seeks leave to reargue the Court’s decision.DiscussionRespondent argues that the Court should reconsider its May 4, 2018 decision and order because she made use and occupancy payments following Judge Pinckney’s order therefore the proper remedy for any alleged defaults is an immediate trial as opposed to the entry of a money judgment. Petitioner in opposition argues that the relief granted by the Court was appropriate because the need for a trial had become moot.A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that “the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law” in arriving at its decision. McGill v. Goldman, 261 AD2d 593 [2nd Dept1999]. A motion to reargue is not designed to afford an unsuccessful party a second opportunity to re-litigate issues previously decided or to present arguments which were not originally asserted. Pahl Equip. Corp. v. Kassis, 182 AD2d22 [1st Dept 1992].RPAPL §745 (2) (c)(I) provides that the court shall, upon application of the petitioner, dismiss a respondent’s defenses and counterclaims and award petitioner a judgment if the respondent fails to comply with the court’s direction to pay the full amount of rent or use and occupancy. In contrast, RPAPL§745 (2) (c)(ii) requires an immediate trial where the respondent makes a payment but fails to pay all the use and occupancy directed by the court.Petitioner does not dispute that respondent made payments after Judge Pinckney’s order despite the fact that it relied on RPAPL§745 (2) (c)(I) in its motion to strike respondent’s defenses. However, it argues that even if this was done in error, it would have had no remedy under RPAPL§7452(c)(ii) to address respondent’s default as of March 20, 2018 when respondent returned the keys. An immediate trial would have been baseless. In addition, petitioner asserts that respondent’s defenses fell as a matter of law when she surrendered the premises.The Court finds petitioner’s argument unpersuasive. In addition to possession, the petition here demanded the fair value of use and occupancy from respondent. Therefore, even though she had surrendered possession while the motion was pending, petitioner was entitled to have its claim for the unpaid use and occupancy addressed. Since respondent had paid some of the court ordered use and occupancy, petitioner’s remedy was to have an immediate trial not the immediate entry of a judgment for the unpaid sums. Since is the case, respondent’s defense were not rendered moot as a matter of law.ConclusionBased on the foregoing, the motion to reargue is granted. After reargument, the judgment awarded pursuant to the Court’s May 4, 2018 is vacated. The matter is adjourned to November 14, 2018 at 9:30 am for a trial on petitioner’s claim for unpaid use and occupancy and respondent’s counterclaims.This constitutes the decision and order of the Court.Date: September 27, 2018Queens, New York
