G. Rent Deposits|Pendente Lite Use and Occupancy Rent Deposits|Pendente Lite Use and Occupancy

• Jurisdiction: New York

G. Rent Deposits/Pendente Lite Use and Occupancy

If a stay is granted, relief is given "upon the condition that the person against whom the judgment is entered shall make a deposit in court of the entire amount, or such installments thereof from time to time as the court may direct, for the occupation of the premises for the period of the stay."¹⁵⁶⁷ If rent was paid by a third party (that is, Section 8), the occupant is liable only for a portion of the rent incurred during the tenancy but remains liable for use and occupancy thereafter. ¹⁵⁶⁸

HSTPA enacted significant amendments to RPAPL 745.¹⁵⁶⁹ Under the amended RPAPL 745(2), a petitioner in a summary proceeding in the City of New York may, after 60 days from the parties' first court appearance, less any days the proceeding has been adjourned at the petitioner's request, or the respondent's second adjournment, whichever is earlier, apply to the court for an order directing the respondent to deposit into Court, within five days, all use and occupancy accruing since service of the notice of petition and petition and which becomes due thereafter. This amended version of the statute requires that the landlord's application be made by motion on notice and leaves it to the court's discretion order such deposit or not. Additionally, it now explicitly prohibits striking the tenant's answer and entering judgment as a penalty for failing to make the deposit.

Under the Rent Deposit Law, applicable to both holdover and nonpayment proceedings, If the landlord's application for the deposit of use and occupancy is based on the tenant's second request for an adjournment, due process considerations prohibit the court from counting an adjournment necessitated by the need for an interpreter.¹⁵⁷⁰ A tenant's adjournment request to obtain an attorney is no longer counted. There has been no extension of this statute through the common law outside of the City of New York. In the event a tenant fails to make a court-ordered deposit outside the City of New York, the matter usually proceeds to trial.¹⁵⁷¹

If the value of use and occupancy is in dispute, the landlord has the burden of proof,¹⁵⁷² but a lease provision fixing the amount of damages will be enforced if the damages are reasonably proportionate to the landlord's actual damages for the rental period at issue.¹⁵⁷³ Where payment of use and occupancy, pendente lite, is ordered to preserve the status quo pending the final adjudication of the proceeding, the rate will...