DYE v. LLC (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J), entered April 26, 2023, which denied defendants’ motion for past and pendente lite use and occupancy, unanimously affirmed, with costs.

“A court has broad discretion in awarding use and occupancy” during the course of litigation (43rd St. Deli, Inc. v. Paramount Leasehold, L.P., 107 A.D.3d 501, 501, 967 N.Y.S.2d 61 [1st Dept. 2013];  see also Alphonse Hotel Corp. v. 76 Corp., 273 A.D.2d 124, 710 N.Y.S.2d 890 [1st Dept. 2000];  East 4th St. Garage, Inc. v. Estate of Berkowitz, 265 A.D.2d 249, 249, 697 N.Y.S.2d 266 [1st Dept. 1999]).  The motion court “is vested with inherent plenary power to fashion any remedy necessary for the proper administration of justice” (Cane v. Herman, 209 A.D.2d 368, 618 N.Y.S.2d 792 [1st Dept. 1994]).  Where elevator service is absolutely essential to plaintiff's beneficial enjoyment of the premises and the service stops operating properly, “an actual partial eviction [occurs] suspending plaintiff's obligation to pay rent or use and occupancy” (see Union City Union Suit Co. v. Miller, 162 A.D.2d 101, 105, 556 N.Y.S.2d 864 [1st Dept. 1990]).

Here, while defendants’ agent asserted that the elevators had been repaired since July 2022, he provided no corroborating evidence.  Meanwhile, eight of the plaintiffs provided affidavits attesting that, as of February 2023, the elevators continued to malfunction in this high-rise building.  Thus, the court properly exercised its discretion in denying defendants’ motion for alleged past due or ongoing use and occupancy pursuant to Real Property Law § 220 for both current and former tenants.  The court also properly exercised its discretion in declining to direct plaintiffs to post an undertaking.  The “remedy for any over or underpayment [of use and occupancy] is a speedy trial” (Ballinteer Corp. v. SNRP W. 37 LLC, 217 A.D.3d 597, 598, 191 N.Y.S.3d 632 [1st Dept. 2023]).

We have considered defendants’ remaining arguments and find them unavailing.