47-05 Ctr. SPE L.L.C. v. Hack, 2025 NY Slip Op 25129 (2025)

Citation: 47-05 Ctr. SPE L.L.C. v. Hack, 2025 NY Slip Op 25129 (2025)
Parent Document: 47-05 Ctr. SPE L.L.C. v. Hack, 2025 NY Slip Op 25129 (2025)
Jurisdiction: New York (state)
Effective Date: 2025-05-28
Original Source: https://www.courtlistener.com/opinion/10594925/47-05-ctr-spe-llc-v-hack/ ↗

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Petitioner is not entitled to a concomitant money judgment for outstanding use and occupancy for lack of proof. While Petitioner sought use and occupancy in its Petition, Notice of Petition, and in summation, and would normally be entitled to such an award (see RPAPL 741(5); Tzifil Realty Corp v Mazrekaj, 2025 NY Slip Op 25034 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]), Petitioner never sought to amend the Petition to date, and is therefore only entitled to use and occupancy for the period sought in the Petition prior to amendment, in this case through April 2024 (see M. H. Thomasmith Co. v Nicola Design Studio, Inc., 83 Misc 3d 135 [App Term, 2d Dept, 9th & 10th Jud Dists 2024]). However, no competent evidence was offered to substantiate any pre-Petition arrears, as Petitioner did not move a rent ledger into evidence, and its witness only testified that Respondent has paid no rent in the months after filing from May 2024 to April 2025. Accordingly, as the court cannot determine what, if any, amount was due as of commencement, Petitioner's claim for use and occupancy is dismissed after trial. This dismissal is explicitly without prejudice to commencement of a plenary action for any funds owed for rent or use and occupancy as this claim, ancillary to the core relief of possession in a holdover proceeding, was not meaningfully litigated by either party (see CPLR 5013; WHGA Mannie L. Wilson Towers L.P. v Singletary, 78 Misc 3d 1233 [Civ Ct, New York Co 2023]). CONCLUSION

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