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RPAPL 745(2): Pendente Lite Relief
In summary proceedings active for more than 30 days, less days attributable to adjournments requested by landlord, or where the tenant has adjourned twice, whichever is sooner, the landlord may request temporary (pendente lite) relief. If the court grants the relief, the court will order tenant to deposit rent, or use and occupancy, accrued from the date the petition was served on tenant. Additionally, the court may order tenant to deposit future rents, or use and occupancy, if landlord can establish same without an expert.
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Small Building vs. Large Building
When the tenant resides in a building containing twelve or fewer units, the court can ask the tenant if there is any undisputed monies due to the landlord. If tenant answers yes the landlord is entitled to the undisputed amount. Any disputed monies will be deposited with the court.
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A Common Scenario: Breach of Warranty of Habitability
Be prepared for a common scenario where tenant counterclaims for breach of warranty of habitability and withholds rent for a protracted period of time. In a case, where a landlord-petitioner brought a holdover proceeding and demand for rent not paid for five years, and the respondent was seeking discovery, the court held that the landlord was entitled to use and occupancy even though tenants alleged that landlord had breached warranty of habitability; and tenants would be required to pay, without prejudice, all future use and occupancy to landlord at last legal rent. Shoshany v. Goldstein 20 Misc.3d 687, 860 N.Y.S.2d 908 (N.Y. City Civ.Ct.,2008). In Shoshany the court required that the payments be made directly to the landlord because “the amount is undisputed and because the subject building contains twelve units, respondents should pay this amount directly to petitioner.
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Conclusion
If you are litigating a matter with a tenant and tenant has withheld rent due to claims of warranty of habitability or otherwise you should probably contact a landlord-tenant attorney. In the alternative, you may want to petition the court yourself and see if RPAPL 745(2) will work for you.
