Upon Respondent's pro se motion pursuant to CPLR 3211 seeking a dismissal of this proceeding together with Respondent's affidavit in support thereof, the affidavit of Petitioner, Jonathan Nissman and memorandum of law submitted in opposition, and the response brief submitted by counsel appearing for Respondent subsequently to the service of this motion, and upon the petition herein as well as extensive conferencing before the Court, it is, upon said motion and the motion of the court, decided and ordered as follows:

This nonpayment summary proceeding was commenced via the notice of petition and petition dated Sept. 15, 2015. In response to the petition, Respondent appeared pro se via the aforesaid pre answer motion to dismiss, and then, as reported by both counsel at the initial return date of the proceeding, vacated the premises at issue with no intention of returning.

The petition demanded $22,000.00 in rent arrears indicating a gross monthly rent of $5000.00 for the period from May 15, 2014 through September 15, 2015 against which the petition alleged $48,000.00 had been paid. It became clear through substantial conferencing discussed below and the motion papers which were submitted that a discrepancy in the understanding of the terms of the month-to-month tenancy at issue existed in the sum of $1000.00 per month. It was not disputed, however, that the now claimed arrearage began to accrue at the beginning of the month-to-month tenancy in mid-2014 and increased with each passing month by at least that sum.

The submission of the motion was adjourned several times at the joint request of the parties as they were in significant discussion regarding settlement or appropriate management of [*2]the case and the Court was apprised of developments in said discussions during several appearances. During the course of said conferencing the Court was made aware of claims by Petitioner that Respondent was indebted not only for rent arrears, but for damages and repair items, that said issues bore upon the substantial security deposit held by Petitioner and its proper application and the respective counsel were candid in their discussion that if said claims were not considered by the Court that there would be further litigation if the case was not settled. The failure to reach settlement resulted in the setting of a briefing schedule regarding the still pending motion to dismiss which was submitted upon the foregoing papers.

The Respondent's motion to dismiss is grounded in the assertion that whereas the written lease between the parties for a definite term expired May 14, 2014, that she had been in possession since as a month-to-month tenant pursuant to agreement between the parties and that a summary proceeding for nonpayment of rent could not be maintained against a month-to-month tenant. Respondent's understanding of a periodic tenancy, of which the month-to-month tenancy is the most common, is that the tenancy comes to an end each month and must be renewed to take further effect by the tenant tendering another rent check constituting an offer to be accepted or rejected by the landlord. Thus, there can be no nonpayment assumedly because the maximum term can only be one month. It is axiomatic that Respondent's understanding is the inverse image of the true nature of periodic tenancy which is one that renews automatically until terminated by one of the parties. see generally Robert F. Dolan, Rasch's Landlord and Tenant section 30.41. In Tricarichi v Moran, 38 Misc 3d 31 (App. Term., 2nd Dept, 2012) the Appellate Term for the Second and Ninth Judicial Districts reversed the dismissal of a nonpayment proceeding involving a month-to-month tenancy wherein Respondent's argument was asserted and for the reasons set forth therein Respondent's motion is denied.

There are other issues, however, which require further attention and the invocation of the power of the court to grant relief based upon its own motion which start with the fact that Respondent has vacated the premises and has no intention of fighting for possession. While it is clear that a respondent's vacating of the subject premises after the commencement of the summary proceeding does not divest the court of jurisdiction, Tricarichi v Moran, supra citing Sowalsky v MacDonald Stamp Co., 31 AD2d 582 ( 3rd Dept.,'68), Bahamonde v Grabel, 34 Misc 3d 58 (App. Term., 2nd Dept, 2011), Lido Realty, LLC v Thompson, 19 Misc 3d 144, App. Term., 2nd Dept, 2008), and see generally Robert F. Dolan, Rasch's Landlord and Tenant, section 38.28. It is equally clear that the most essential function of a summary proceeding is to adjudicate the question of possession with the ability to award rent being almost a statutory after thought.

Further, the power of the court to consider and award monetary judgments is strictly limited to rent, hence the practice of describing monetary obligations provided for in a lease as "additional rent", and there is no power to include in such a judgment restitution for damages or other non-rental claims. See generally Robert F. Dolan, Rasch's Landlord and Tenant, section 29:7 for this basic tenant. Thus, the court is without power to adjudicate the controversies between the parties concerning claims for damages and the cost to repair and is powerless to determine the proper application of the security deposit held by Petitioner.

Respondent raises another key point in the reply submitted by invoking the equitable rule generally understood to prohibit a Petitioner from recovering more than three month's rent arrears in a summary proceeding. The parameters of said rule vary and can include the prohibition of a landlord's ability to bring a summary proceeding when the conduct of the [*3]landlord is designed to maximize the difficulty of a respondent to cure arrearages. An egregious example saw the landlord with a rent-stabilized tenant withholding rent for a lack of repairs who chose instead of making the repairs to advise Social Services that the tenant was withholding the rent so that Social Services would discontinue the rent subsidy increasing the arrearage beyond the ability of the tenant to cure. The motivation was to evict a rent regulated tenant so the landlord would then be free to rent sans rent control. The court, with abhorrence at being made a party to such trickery, dismissed the petition with prejudice. Antur Realty Corp. v Rivera, 110 Misc 2d. 532 (Civil Ct., Queens, 1981). More typically a failure to promptly act so that arrears are allowed to accumulate to a point where a tenant cannot be expected to be able to cure in the short time that a summary proceeding is pending may result in an outright dismissal without prejudice to a claim for said monies in a plenary action without considering actual harm to the tenant, Gramford Realty Corp. v Valentin, 71 Misc 2d 784 (Civil Ct., NY, 1972) or with consideration of whether there has been harm from said delay, City of New York v Betancourt, 79 Misc 2d 907 (App. Term, 1st Dept.) . An extensive line of cases has rejected the automatic application of the rule and holds that the defense is both equitable and elastic so that the reasons why delay has occurred must be considered and then the appropriate consequence determined from dismissing the case in heinous scenarios, to limiting the amount recoverable in the summary proceeding and, by the same token, the sum necessary to pay in order to redeem, to excusing the delay when appropriate. See 269 Associates v Yerkes, 113 Misc 2d 450 (Civil Court, NY Co., '82) and the survey of cases discussed by Judge Saxe therein.

In the instant case it is appropriate to limit the possible recovery of rent arrears to three months or $3000.00 and it is so ordered, without prejudice to the Petitioner's ability to recover additional rent arrearages in a plenary action. The dispute as to the amount due pursuant to the month-to-month tenancy has existed since the inception of the month-to-month tenancy over a period of 15 months and the failure to bring the summary proceeding before its inception has allowed the dispute to escalate from $1000.00 when it began to over $22,000.00. It is quite conceivable that this factor alone motivated the Respondent to voluntarily vacate the premises.

In now facing a scenario where possession has been eliminated from this case, and where the monetary claims between the parties far exceed the recoverable rent (or redemption amount) in this proceeding as well as the general civil jurisdiction of this court, the question is begged as to whether or not it makes any sense for this proceeding to continue. If this case were to proceed to adjudication, then the questions of the res judicata effect of the determinations to be made herein upon a plenary action regarding all of the other claims between the parties would have to be considered as would the possibility of inconsistent factual findings. In short, the instant proceeding as a forum for dispute resolution between the parties herein simply does not make sense, and the parties belong in a forum with jurisdiction of all of the disputes that exist.

Does the court have the power to dismiss this proceeding despite the presence of jurisdiction to adjudicate a small portion of the parties' disputes because the exercise of said jurisdiction is judicially inane under the circumstances? It is clear that the court does have the power to abstain from exercising jurisdiction under appropriate circumstances. The aforesaid cases concerning the equitable defense arising when a landlord inequitably allows arrearages to accumulate which view a proper remedy to be the dismissal of the summary proceeding, are a prime example.

Another example is found in those cases which consider attempts to evict a family member to be not proper subjects for summary proceedings. Although the typical family [*4]scenario is a judicial refusal to view a spouse or child as a licensee pursuant to RPAPL 713 (7) in the absence of a lease, see Rosenstiel v Rosenstiel, 20 AD2d 71, (1st Dept., 1963), there are instances where there is a lease and thus no license. In Soto v Soto, 4 Misc 3d 881 (District Court, 204) the factual pattern involving an alleged month-to-month tenancy between relatives was recognized as being a different fact pattern from the license scenario, but it was equally recognized that "the issues raised are better litigated in the Supreme Court where this divorce is pending." and the case was stayed pending a divorce action. In staying a summary proceeding pending an action which could last for a protracted period of time, the court effectively dismissed the summary proceeding.

A further example is seen in cases which have considered applications by respondents who are no longer in possession who seek to challenge an eviction and who simultaneously bring a plenary action seeking damages for unlawful eviction. Although the court has clear power to consider a motion to vacate a judgment of possession, where possession is not really sought, but said action for damages arising on account of wrongful eviction is pending, the application can be denied without considering the issues because the forum for litigating all of the questions concerning propriety of the proceeding should be the action in which damages for wrongful eviction are sought. 430 Realty Associates v McLeod, 147 Misc 2d 507 (Civil Court, Kings Co., 1990).

It is clear, with possession not an issue and recoverable rent arrears being the only thing which the Court can consider and same being a very small part of the monetary dispute between the parties, that these parties belong in a plenary action. It is most probable in light of the inability to reach a settlement that that is where they will be regardless of the exercise of jurisdiction by this court. The possibility of inconsistent findings by different forums should be avoided. Prejudice to Petitioner in the refusal to exercise jurisdiction is minimal or non- existent.

It is therefore ordered, upon the court's own motion, that this proceeding is dismissed without prejudice to any cause of action in either party that may be brought in a plenary action.