Gabriels Albany, for Petitioner-Landlord.
Stephanie Ferradino Esq. Saratoga Springs, NY, for
Remsen LLC ("Remsen") brought a non-payment
proceeding under RPAPL § 711(2) against its tenant
Commercial Investigation LLC ("Commercial"). With
the consent of the parties, a trial was held on May 15, 2017.
After the trial, the parties submitted summations and legal
arguments, and the case was fully briefed on June 5, 2017.
Based upon the credible evidence, the court finds the facts
2011, Commercial entered into a written agreement with R
& B Properties ("R & B") to lease office
space at 130 Remsen St., 2nd floor. The lease ran six years
until June 30, 2017. At the time the lease was executed,
Commercial paid R & B $2, 250 as a security deposit.
B suffered financial difficulties. Sometime in April 2016,
Commercial became aware of a looming foreclosure proceeding.
Given R & B's pending calamity, Commercial was
hesitant to pay May's rent to an entity on the brink of
going under. Ultimately, the office building was foreclosed
upon. Indeed, a referee foreclosure sale was held in April
2016, where Remsen won the auction. Shortly thereafter, on
May 1, 2016, R & B assigned its right to collect rents to
Remsen. After the assignment, on May 16, 2016, Remsen closed
on the property and acquired legal possession and title to
the office building.
never informed Commercial of the rent assignment. Yet the
evidence established three facts - first, sometime in May
2016, apparently after the closing on May 16, Commercial knew
that Remsen was now the owner of the building and
Commercial's new landlord; second, Commercial never paid
May 2016's rent to either R & B or Remsen; and third
Commercial faithfully paid its rent to Remsen from June 2016
through March 2017.
makes this case a case is what happened between the parties
from June 2016 to April 2017. Remsen wanted Commercial to
agree to a new longer lease. Commercial had reservations -
Remsen planned to renovate and to convert the two floors
above its office into residential apartments and the noise
and other negative externalities from the renovation might
have interfered with Commercial's business operations. To
assuage Commercial's concerns, Remsen offered terms where
if Commercial found the renovations disruptive of its
business, Commercial could break the lease and vacate without
event, new lease or no new lease, Remsen wanted Commercial to
make a new security deposit because R & B had not
transferred Commercial's previous security deposit to
Remsen. Commercial took the position that it had already paid
a security deposit and no new security deposit would be forth
coming. Remsen countered that when it took possession of the
building, Commercial became a month to month tenant and if a
new lease was not executed together with payment of the
security deposit, Remsen would serve Commercial with a 30 day
notice to vacate - in other words Remsen told Commercial to
pay the security deposit or get out. These communications
were made verbally and in voicemails but never in writing.
of new leases and security deposits ended in January 2017,
when Commercial informed Remsen, by written notice, that it
would be vacating the office space at the end of March 2017.
Commercial did leave the office as promised at the end of
March. Remsen had its management company move into the space
at the end of April. Remsen demanded May 2016's and April
2017's rent. Commercial declined to pay the rent arguing
that it had become a month to month tenant and under such a
tenancy, it had given Remsen sufficient notice to quit and
thus owed no rent. Remsen then instituted this proceeding to
collect the rental arrears.
addressing the rent issue, the court must ensure it possesses
jurisdiction. This case is a non-payment proceeding brought
under RPAPL § 711(2). RPAPL § 711(2)'s primary
purpose is to return control of a landlord's property to
him where a tenant has not paid his rent. While a landlord
may seek back rent under RPAPL § 711(2), it may not use
the statute to collect an overdue debt (Poulakas v.
Ortiz, 25 Misc.3d 717, 724-25 [Kings County Civ. Ct.
2009]). Consequently, "[i]t is a basic premise of
landlord-tenant summary proceedings [that] the person against
whom the action is brought be in physical possession of the
subject premises at the time the action is commenced in order
for the Court to obtain jurisdiction" (Torres v
Torres, 13 Misc.3d 1167, 1170 [Kings County Civ. Ct.
has an issue with timing. Commercial had vacated the office
at the end of March and returned the keys no later than April
7. Remsen commenced this summary proceeding on April 18, 2017
- after the date that Commercial had already surrendered
possession of the office. Thus, the RPAPL does not provide
the court with subject matter jurisdiction.
jurisdictional inquiry does not cease here. While the court
cannot hear the case as pleaded, the question becomes whether
the court has jurisdiction of this type of claim -a breach of
contract (see Matter of Rougeron, 17 N.Y.2d 264, 271
 [explaining that subject matter turns not on the case
as plead but th[e] "kind of case" in fact]).
court has "all of the powers that the supreme court
would have in like actions and proceedings" (Uniform
City Court Act § 212). One power possessed by supreme
court is the power to ...