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Summary Landlord Tenant Proceedings: Landlord Must Show that Tenant was in Physical Possession of the Premises at the Time of Commencement

Under New York landlord tenant law, a landlord has the option of filing a summary proceeding to evict a tenant who has failed to pay rent, breached their lease or overstayed the term of their tenancy. Summary proceedings for nonpayment of rent by the tenant are authorized by RPAPL § 711(2). Because the underlying purpose of a summary proceeding is obtaining possession, a landlord must show that the tenant continues to be in physical possession of the rented space as a precondition for bringing a summary proceeding. On August 25, 2017, the City Court of Cohoes, in the case 130 Remsen LLC v. Commercial Investigations LLC, reaffirmed the rule that a summary nonpayment proceeding is only available where a tenant continues to be in possession. The Court held as follows:

This case is a non-payment proceeding brought under RPAPL § 711(2). RPAPL § 711(2)'s primary purpose is to return control of a landlord's property to him where a tenant has not paid his rent. While a landlord may seek back rent under RPAPL § 711(2), it may not use the statute to collect an overdue debt (Poulakas v. Ortiz, 25 Misc 3d 717, 724—25 [Kings County Civ. Ct. 2009]). Consequently, "[i]t is a basic premise of landlord—tenant summary proceedings [that] the person against whom the action is brought be in physical possession of the subject premises at the time the action is commenced in order for the Court to obtain jurisdiction" (Torres v Torres, 13 Misc 3d 1167, 1170 [Kings County Civ. Ct. 2006]).

Therefore, if rent is owed by a tenant who has already vacated the leased premises, a landlord must resort to a plenary proceeding to collect past-due rent.

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