This is a holdover summary eviction proceeding predicated on the claim that Respondent is violating a substantial obligation of her tenancy in that her washing machine causes noise and vibration that interferes with her neighbors' enjoyment of their apartments. By decision dated February 16, 2016 (Stanley, J.) the court denied Respondent's pre-answer motion to dismiss the petition and directed Petitioner to respond to Respondent's demand for a bill of particulars. A month before that decision issued, Petitioner served the motion now before the court, which seeks an order directing Respondent to pay use and occupancy past due and ongoing. Respondent subsequently cross-moved for relief related to Petitioner's alleged failure to comply with Respondent's demand for a bill of particulars, but she has withdrawn that motion.

The court's authority to direct deposit or payment of use and occupancy is governed by RPAPL 745 (Front St. Rest. Corp. v Ciolli, 55 Misc 3d 104 [App Term, 2d, 11th, & 13th Jud Dists 2017]; see, also, Quality & Ruskin Assoc. v London, 8 Misc 3d 102 [App Term, 2d Dept 2005] ["as for that branch of the motion seeking use and occupancy pendente lite, the availability of same is governed by RPAPL 745(2)"]). "RPAPL 745(2)(a) allows a court, 'upon the second of two adjournment at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner,' upon an application by the landlord, to direct that a tenant deposit use and occupancy with the court or pay it to the landlord" (id.).

The appropriate method for determining whether the conditions for such an order have been met is set forth in the Appellate Term's decision in Myrtle Venture Five, LLC v Eye Care Opt. of NY, Inc. (48 Misc 3d 4 [App Term, 2d, 11th, & 13th Jud Dists 2015]). In Myrtle Venture [*2]the nonpayment proceeding was adjourned five times, first appearing on the calendar on October 11, 2012 and finally on January 9, 2013. On the fifth appearance, December 10th, the parties entered into a so-ordered stipulation whereby the proceeding was adjourned and tenant agreed to pay one month's worth of use and occupancy. After the tenant failed to make the payment the lower court dismissed the tenant's answer and entered judgment in favor of the landlord.

The Appellate Term reversed, finding that the December 10th appearance "was not the second of two adjourned dates requested by tenant, and 30 days had not elapsed within the meaning of RPAPL 745(2)(a)(ii), as all of the adjournments except for one had been consented to by the parties" (Myrtle Venture Five, LLC, 48 Misc 3d at 6 [citing Allmen v Andre, NYLJ, Apr. 8, 1998 at 30, col 1 (Civ Ct, NY County 1998)]). In other words, as held in Allmen, "where a landlord and tenant consent to an adjournment, their agreement, to the extent subject to the approval of the court, is appropriately considered a request by both parties to the court for the adjournment. It is therefore excludable from the thirty days upon the passage of which a rent deposit is to be ordered, as the statute expressly exempts days requested by the petitioner" (Allmen v Andre, NYLJ, Apr. 8, 1998).

The proceeding before the court was initially returnable on March 7, 2016 and adjourned to April 18, 2016. On April 18th the proceeding was adjourned to June 10, 2016, counsel for Petitioner requesting that the court "just give me a trial date." Respondent then obtained counsel and moved to dismiss the petition, which motion was made returnable June 23, 2016.

On June 23rd the proceeding was adjourned to August 15th by stipulation, which set out a briefing schedule and notes that the adjournment is "on consent." On August 15th the proceeding was adjourned to September 27th by stipulation, which noted that the motion had been fully briefed (it appears from the file jacket the judge who normally sat in that part at that time, and would typically have heard the motion, was not in on August 15th). On September 27th the proceeding was adjourned to October 17th. A marking on the file jacket indicates that the adjournment was due to a judicial conference being held at that time. On October 17th the proceeding was adjourned to December 16th by stipulation, which noted that the adjournment was "on consent." On December 16th the court heard argument on the motion to dismiss and reserved decision.

On February 6, 2017, the return date of Petitioner's motion, the proceeding was adjourned to March 21, 2017 by stipulation, which set a date for Respondent's opposition to the motion. On March 21st the proceeding was adjourned to April 25th by stipulation, which again set a date for Respondent's opposition to the motion, the earlier deadline having apparently not been met. On April 25th, the proceeding was adjourned to June 5th by stipulation, "for Petitioner to reply/oppose Respondent's cross-motion."

On the record before the court, Petitioner consented to every adjournment in this proceeding. Every adjournment must therefore be considered to have been at the request of both parties. Accordingly, Petitioner's motion was not made upon the second of two adjourn dates requested by Respondent nor had (or has since) 30 days elapsed within the meaning of RPAPL 745(2)(a). The conditions for an order directing payment or deposit of use and occupancy pursuant to the statute have not been met.

Petitioner argues that "the equities demand, as quid pro quo for continued occupancy, that the Respondent pay for the use of the subject premises until this proceeding reaches a final result." As compelling as the equities may be, the Appellate Term has made clear that, in a summary proceeding, the court's power to direct payment of use and occupancy is not an [*3]inherent one governed by a consideration of the equities, but instead derives solely from RPAPL 745. Absent a finding that the conditions of the statute have been met, the court may not order payment or deposit of use and occupancy (but cf. Levinson v 390 W. End Assoc., LLC, 22 AD3d 397, 403 [1st Dept 2005] [in a tenant's action for declaratory judgment regarding rent overcharge, directing payment of use and occupancy because "it has long been held that a dispute concerning the amount of rent owed is no reason to allow a tenant to occupy the landlord's real property gratis"]).

Petitioner's motion is denied. The proceeding is restored to the calendar for trial on September 11, 2016, at 9:30 AM. The parties shall appear in the part by 10:00 AM to be sent to the trial expediter.