Seminole Housing Corp. v. M & M Garages, Inc.

47 A.D.2d 651, 364 N.Y.S.2d 26, 1975 N.Y. App. Div. LEXIS 8837

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1975
• Status: Published

Opinion

Appeals (by permission) by the tenant and the landlords in six holdover summary proceedings to recover possession of real property, from an order of the Appellate Term of the Supreme Court, 2nd and 11th Judicial Districts, dated August 21, 1974, which modified six judgments (one in each proceeding) of the Civil Court of the City of New York, Queens County, all entered February 25, 1974, and, as thus modified, affirmed the judgments. The judgments awarded possession to petitioners-landlords and five of the petitioners-landlords were also awarded sums of money for the value of the tenant’s use and occupancy of the premises. The modification deleted the monetary awards without prejudice to a separate action to recover for such use and occupancy. Order affirmed, without costs. We are constrained by the limitations of subdivision 5 of section 741 of the Real Property Actions and Proceedings Law to hold that in a holdover summary proceeding to recover possession of real property a monetary award to the petitioner-landlord for use and occupation of the premises by the tenant may not be awarded (cf. Real Property Actions and Proceedings Law, § 601); a fortiori, the same conclusion should follow where no money judgment for rent had been sought in the notice of petition and in the petition in such a proceeding and where the trial court made findings of money damages in excess of the rent previously paid by the tenant and accepted by the landlord. We strongly recommend that the Legislature expand the above-mentioned statutory limitation (subd. 5) to permit a recovery for use and occupation to be awarded if the petition so demands and if the notice of petition contains notice to that effect. We believe this would be a proper method of avoiding circuity of action, since the matter is easily capable of resolution by the court in the summary proceeding, with the parties and all the facts before it. Gulotta, P. J., Hopkins, Cohalan, Christ and Munder, JJ., concur. [78 Misc 2d 762.]