Point 128, LLC v. Sound De Point LLC

• Decision Date: 07 October 2021
• Docket Number: Index No.: LT-053636-20/QU
• Parties: The POINT 128, LLC, Petitioner, v. SOUND DE POINT LLC; XYZ Corp., Respondent(s).
• Court: New York Civil Court

73 Misc.3d 746
155 N.Y.S.3d 731

The POINT 128, LLC, Petitioner,
v.
SOUND DE POINT LLC; XYZ Corp., Respondent(s).

Index No.: LT-053636-20/QU

Civil Court, City of New York, Queens County.

Decided on October 7, 2021

155 N.Y.S.3d 732

Petitioner's counsel: Hazel F. Chin Law Offices, P.C., 36-09 Main Street, Suite 7C, Flushing, NY 11354

Respondents: Pro se

Wendy Changyong Li, J.

73 Misc.3d 747

Discussion and Decision

In a notice of petition ("Petition ") filed February 26, 2020, Petitioner commenced this commercial nonpayment proceeding for premises known as Unit No. [XXX] located at [XXX] 127th Street, College Point, NY 11356 ("Premises "), to recover $150,413.01 in unpaid rent from June 1, 2019, plus interest, costs and disbursements, and a judgment of possession ( RPAPL 711[2] ). Respondents failed to answer the Petition (see Motion, Aff. of Chin, ¶ 6). Petitioner now moved, by the Motion, for an order issuing a warrant of eviction. Respondent did not oppose Petitioner's Motion.

On September 2, 2021, Governor Kathy Hochul signed into law 2021 NY Senate-Assembly Bill S50001-A40001 ("Act "). Among other things, the Act amended various

155 N.Y.S.3d 733

laws enacted in response to the Covid-19 pandemic, namely the Tenant Safe Harbor Act ("TSHA "), the Covid-19 Emergency Eviction and Foreclosure Prevention Act ("CEEFPA "), and Covid-19 Emergency Protect Our Small Businesses Act ("CEPOSBA ", collectively with TSHA and CEEFPA, the "Prior Acts "), extended the Prior Acts’ effective dates to January 15, 2022, and combined the Prior Acts into the Act. Relevant to the issues involved in our instant case, CEPOSBA is now Part B of the Act.

The Judgment

"No commercial tenant shall be removed from the possession prior to January 15, 2022, except by an eviction proceeding" (Act, Part B, Subpart A, § 2).

Act, Part B, Subpart A, § 5 provides:

In an eviction proceeding in which an eviction warrant or judgment of possession or ejectment has

73 Misc.3d 748

not been issued, including eviction proceedings filed on or before March 7, 2020, if the tenant provides a hardship declaration to the petitioner or plaintiff, the court, or an agent of the petitioner or plaintiff or the court, the eviction proceeding shall be stayed until at least January 15, 2022...

Since neither the judgment of possession nor the eviction warrant which Petitioner sought in its Motion had been issued, this non-payment proceeding before this Court would have been stayed only if Respondent were to provide a hardship declaration (see Act, Part B, Subpart A, § 5). The court has not received Respondent's hardship declaration. Neither has Petitioner advised this Court that Respondent provided such hardship declaration to Petitioner. Therefore, the proceeding here is not stayed.

At the outset, this Court notes that the Petitioner presented a supplemental affidavit sworn December 29, 2020, in which Mendoza ("Mendoza Affidavit "), a maintenance engineer of the building where the Premises are located, attested that he observed agents of Respondent removing personal belongings from the Premises on March 1, 14, and 19, 2020. When a tenant abandons leased premises prior to lease expiration, the landlord could 1) do nothing and continue collecting rent due under the lease, 2) accept tenant's surrender, reenter the premises, relet them for its own benefit, and release tenant from further rent liability, or 3) notify tenant it will enter and relet the premises for tenant's benefit ( Holy Props. v. Cole Prods., Inc. , 87 N.Y.2d 130, 133-34, 637 N.Y.S.2d 964, 661 N.E.2d 694 [1995] ; REP A8 LLC v. Aventura Tech., Inc. , 68 A.D.3d 1087, 1089, 893 N.Y.S.2d 83 [2d Dept. 2009] ). Under the third option, the landlord would first apply the rent collected to its own expenses and then tenant's rent obligation thereafter ( Holy Props. v. Cole Prods. , 87 N.Y.2d at 134, 637 N.Y.S.2d 964, 661 N.E.2d 694 ). "Ordinarily, surrender of the lease is accomplished by the vacating of the premises and return of the keys to the landlord" ( Starrett City, Inc. v. Smith , 25 Misc. 3d 42, 45, 889 N.Y.S.2d 362 [App. Term 2d Dept. 2009] ). In our instant matter, Petitioner specifically denied receiving the keys from Respondent (see Motion, Chin Aff. ¶10), so Respondent has not surrendered the Premises. "A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated" ( Riverside Research Inst. v. KMGA, Inc. , 68 N.Y.2d 689, 691-92, 506 N.Y.S.2d 302, 497 N.E.2d 669 [1986] ;

73 Misc.3d 749

Chestnut Realty Corp. v. Kaminsky , 132 A.D.3d 797, 797, 18 N.Y.S.3d 650 [2d Dept. 2015] ; Ford Coyle Props., Inc. v. 3029 Ave. V Realty, LLC , 63 A.D.3d 782, 782, 881 N.Y.S.2d 146 [2d Dept. 2009], see Solomon v. Ness , 118 A.D.3d 773, 774, 987 N.Y.S.2d 220 [2d Dept. 2014] ). Here, Petitioner

155 N.Y.S.3d 734

has done nothing inconsistent with the landlord-tenant relationship. There is no indication that the lease is not in force. Under the circumstances, Petitioner was required to proceed against Respondent...