Justice Court of the Town of Ossining, Westchester County, March 9, 2023

Steven Felsenfeld, petitioner pro se.

Jessica Rogers, respondent pro se.

For the reasons that follow, the petition in this summary landlord-tenant proceeding is denied and the proceeding is dismissed.

On March 9, 2021, the petitioner commenced this summary holdover proceeding to recover possession of real property and for an award of allegedly unpaid rent. The respondent undisputedly surrendered possession of the premises on June 2, 2021, a date after the proceeding was commenced.

On or about July 23, 2021, the petitioner filed an amended petition seeking to recover, among other things, rent in the amount of $2,950 per month through the end of June 2021. The amended petition contained an allegation that the respondent surrendered possession of the premises on or about June 2, 2021. In contrast to the original petition, the amended petition made no demand for an award of possession.

On September 9, 2021, the parties appeared for a nonjury trial. The parties agreed that the issue of possession had been resolved by the respondent's surrender of possession of the premises on June 2, 2021, and the petitioner withdrew his demand for an award of possession.

After the trial, the court ruled from the bench that the petitioner was entitled to an award of use and occupancy in the sum of $9,046.66 for the period through June 2, 2021. The court declined to award the petitioner certain additional damages he sought on the rationale that they were not recoverable in a summary proceeding (see RPAPL 702). Immediately following the court's decision, the respondent handed the petitioner a check in open court representing a portion of the amount determined to be due to the petitioner. By judgment entered September 27, 2021, the court awarded the petitioner the sum of $1,598.11.

The petitioner appealed to the Appellate Term, arguing that he was entitled to a larger monetary award. By decision and order dated November 3, 2022, the Appellate Term reversed{**78 Misc 3d at 972} [*2]the judgment, holding "we do not reach the merits of landlord's contention, as the money judgment was improperly entered, and cannot stand, as there was no concomitant award of possession to landlord" (Felsenfeld v Rogers, 77 Misc 3d 128[A], 2022 NY Slip Op 51143[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). The Appellate Term remitted the matter "for the entry of a final judgment either in landlord's favor, which would include an award of possession, or in tenant's favor, dismissing the petition, whichever is appropriate under the circumstances" (id.).

Upon the remittitur from the Appellate Term, on February 9, 2023, the parties appeared before the undersigned. Both sides agreed (as they had at the time of trial) that the issue of possession had been resolved by the respondent's June 2, 2021 surrender of the premises.

In a summary proceeding pursuant to RPAPL article 7 to recover possession of real property, the relief sought may include a judgment for rent or use and occupancy "if the notice of petition contains a notice that a demand for such a judgment has been made" (RPAPL 741 [5]).

It is well-settled that a tenant's surrender of possession prior to the landlord's commencement of a summary proceeding to recover the premises will deprive a court of jurisdiction to entertain the proceeding (see 2 Dolan, Rasch's Landlord and Tenant, Including Summary Proceedings § 38:26 [5th ed, July 2022 update]; Merrbill Holdings, LLC v Toscano, 59 Misc 3d 129[A], 2018 NY Slip Op 50410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; 92 Bergenbrooklyn, LLC v Cisarano, 50 Misc 3d 21, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

A line of case law provides that a tenant's surrender of possession of premises after commencement of a summary proceeding does not divest the court of jurisdiction to adjudicate monetary claims relating to rent or use and occupancy (see Tricarichi v Moran, 38 Misc 3d 31, 32-33 [App Term, 2d Dept, 9th & 10th Jud Dists 2012] ["While a surrender of possession after the commencement of a summary proceeding terminates the tenancy . . . it does not divest the court of jurisdiction over the proceeding"]; Eastrich No. 80 Corp. v Patrolmen's Benevolent Assn. of N.Y. City Tr. Police Dept., 180 Misc 2d 98, 99 [App Term, 1st Dept 1999] ["a judgment for rent may be rendered in {**78 Misc 3d at 973}a summary proceeding without regard to amount, and jurisdiction is not divested merely because of the removal of the respondent subsequent to the commencement of the proceeding" (citations and internal quotation marks omitted)]; Liza Realty Corp. v Machlus Leather Goods, 43 Misc 2d 57, 58 [App Term, 1st Dept 1964] ["It was error for the lower court to dismiss the summary proceeding for nonpayment of rent and for a judgment for rent arrears on the ground that it lacked jurisdiction, because the tenant had vacated the premises after the service of the precept and petition, but prior to the trial"]; Four Forty-One Holding Corp. v Bloom, 148 Misc 565, 567 [App Term, 1st Dept 1933] ["When this proceeding was instituted the tenant was in possession. The court then had jurisdiction to entertain the proceeding and, jurisdiction over the subject-matter having once vested, was not divested by subsequent events, although of such character as would have prevented jurisdiction from attaching in the first instance"]; see also Benben v DiMartini, 4 Misc 3d 135[A], 2004 NY Slip Op 50778[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004]; Erik James LLC v Bruna, 70 Misc 3d 1223[A], 2020 NY Slip Op 51605[U] [Civ Ct, Bronx County 2021]; Andrew Scherer & Fern Fisher, Residential Landlord Tenant Law in New York § 7:39 [Nov. 2022 update] ["Once the proceeding has been commenced, however, the petitioner may, as a general rule, still proceed to judgment even if the [*3]respondent moves out"]).

Another line of case law provides that, in a summary proceeding, a monetary award in favor of a landlord can only be made "concomitant with an award of possession" and, therefore, a money judgment in favor of a landlord without an accompanying award of possession is deemed to be "improperly entered" (see Carney Realty Corp. v Elite Tent & Party Rental, 73 Misc 3d 141[A], 2021 NY Slip Op 51197[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2021] ["Before the start of a nonjury trial, tenant, on the record, surrendered possession of the premises and returned the keys to landlord's agent . . . . (T)he 'money judgment' was improperly entered, and cannot stand, as there was no concomitant award of possession to landlord"]; FBD Realty, LLC v Rego Park N.H., Ltd., 73 Misc 3d 131[A], 2021 NY Slip Op 50961[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021] ["Landlord commenced this commercial holdover proceeding in April 2019 . . . . Tenant subsequently vacated the premises in June 2019. . . . (U)pon the record before us, the money judgment appears to have been{**78 Misc 3d at 974} improperly entered without a concomitant award of possession to landlord"]; see also Javaherforoush v Sherrard, 74 Misc 3d 137[A], 2022 NY Slip Op 50307[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Fieldbridge Assoc., LLC v Sanders, 70 Misc 3d 140[A], 2021 NY Slip Op 50128[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

A precise reconciliation of the aforementioned lines of cases is not readily apparent. Nevertheless, the petitioner's abandonment or withdrawal of his demand for possession necessitates dismissal pursuant to the "concomitant award of possession" rule enunciated by the Appellate Term. Because an amended pleading supersedes an original pleading and becomes the only pleading in the case (see R&G Brenner Income Tax Consultants v Gilmartin, 166 AD3d 685, 688 [2d Dept 2018]), the petitioner effectively abandoned his original petition's demand for possession when he served the amended petition in which he alleged that the respondent had surrendered possession of the premises, and in which he omitted any demand for an award of possession. Further, even if his original demand for possession survived the filing of his amended petition, it was formally withdrawn on the record immediately prior to the nonjury trial. The petitioner's demand for an award of possession having been abandoned or withdrawn, the court is required, under the prevailing case law, to dismiss the proceeding.

Accordingly, it is ordered and adjudged that the petition is denied and the proceeding dismissed, without prejudice.

All other relief requested and not herein decided is denied.