Since the start of COVID-19, court closures, and various eviction moratoriums in both residential and commercial eviction proceedings, a recent trend has developed: commencement of a plenary action for a money judgment in a proceeding that is not an eviction proceeding. The moratoriums that have been issued since the start of COVID-19 have not precluded a building owner from commencing a plenary action. Three particular causes of action stand out as being relevant to these types of actions:
- A simple breach of a lease, if there is a lease in place
- An action or use in occupancy under Real Property Law 220, where there is no lease in place
- Unjust enrichment, where there is no lease in place
In a situation where a building owner doesn’t have a lease in place, the building owner may turn to Real Property Law 220 or unjust enrichment for relief. Those building owners are currently unable to go to the courts and proceed with their holdover proceeding actions, so they’ll use those causes of action to collect a money judgment. Real Property Law 220 states that a landlord may recover reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by deed, and the parol lease or other agreement may be used as evidence of the amount to which he is entitled.
This section of the Real Property Law is typically what is used in eviction proceedings to collect use and occupancy during a holdover proceeding. However, it also may be a separate cause of action in a plenary action.
The Doctrine of Unjust Enrichment allows a party to recover from another party when there’s not an enforceable contract in place in situations where one party has benefited from the other party’s efforts without compensation. In New York, the elements of an unjust enrichment claim are: 1) that the party was enriched, 2) at the party’s expense, and 3) that it is against equity in good conscience to remit the other party to retain what is sought to be recovered. All of those elements are usually interpreted to be present in a situation where a tenant or an occupant is using the premises and living in the premises, without payment of any use and occupancy, aka rent.
Although plenary actions aren’t necessarily moving forward very quickly either at this time, these actions are not prohibited by any of the recent legislation that prevents evictions or judgments of possession from issuing.
The Law Offices of Jordi Fernandez
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