Appeal from an order of the District Court of Nassau County, First District (Eric Bjorneby, J.), dated April 9, 2012. The order denied tenant's motion to vacate landlord's voluntary discontinuance of the summary proceeding and to restore the proceeding to the calendar.

ORDERED that the order is reversed, without costs, and tenant's motion to vacate landlord's voluntary discontinuance of the summary proceeding and to restore the proceeding to the calendar is granted.

Landlord commenced this nonpayment proceeding by notice of petition and petition, which were served on tenant on August 5, 2011 and made returnable August 15, 2011, for a final judgment of possession and the sum of $12,745.18, plus attorney's fees. On September 1, 2011, a stipulation was entered into between the parties in court whereby it was agreed that landlord would be given possession of the premises as of that date, although the parties reserved their right to litigate the issue of whether possession had been delivered earlier than that date. On September 30, 2011, tenant moved to dismiss the proceeding on the grounds, among others, that a rent demand had not been served, as required by RPAPL 711 (2), and that tenant had vacated the premises prior to the commencement of the proceeding. No opposition was submitted by landlord. Instead, on October 14, 2011, landlord served and filed a notice to voluntarily discontinue the proceeding, and the proceeding was marked discontinued. In response, tenant moved to vacate the discontinuance and to restore the proceeding to the calendar, contending that the notice of discontinuance was untimely, pursuant to CPLR 3217 (a) (1), since it had been served more than 20 days after service of the petition and after a "responsive pleading," i.e., the motion to dismiss (see Polgar v Focacci, 2 Misc 3d 836 [Sup Ct, NY County 2003] David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3217:8), had been served. Landlord opposed the motion, and the District Court denied the motion as moot since tenant had already vacated the premises. Tenant's unopposed motion to dismiss the proceeding was never decided by the court.

Landlord's voluntary discontinuance of the proceeding without a court order is not effective since its notice of discontinuance was untimely under CPLR 3217 (a) (1). Moreover, tenant's motion was not moot since there are still issues to be decided in this nonpayment proceeding. While a surrender of possession after a summary proceeding has been commenced terminates the tenancy, it does not divest the court of jurisdiction over the summary proceeding [*2](see Sowalsky v MacDonald Stamp Co., 31 AD2d 582 [1968] Tricarichi v Moran, 38 Misc 3d 31 [App Term, 9th & 10th Jud Dists 2012] Bahamonde v Grabel, 34 Misc 3d 58 [App Term, 9th & 10th Jud Dists 2011]). Consequently, tenant's motion to vacate the discontinuance and to restore the proceeding to the calendar should have been granted.

Accordingly, the order is reversed and tenant's motion to vacate landlord's voluntary discontinuance of the summary proceeding and to restore the proceeding to the calendar is granted.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: April 16, 2014