DYE v. RBNB 20 OWNER LLC (2024)

Order, Supreme Court, New York County (Paul A. Goetz, J.) entered on or about December 1, 2023, which denied defendants’ motion under CPLR 2221(e) for leave to renew their motion for use and occupancy pendente lite, unanimously affirmed, without costs.

The motion court providently denied defendants’ motion for leave to renew their motion for use and occupancy.  Although defendants maintain that the New York City Department of Buildings (DOB) records show that the 59–story residential building's elevators were repaired, they fail to explain, as required by CPLR 2221(e)(3), why the DOB records were purportedly unavailable at the time of the original motion, nor do they explain why these records would be dispositive.  While defendants urge that renewal may be granted “in the interest of justice even upon facts that were known to the movant at the time the original motion was made” (Kaszar v. Cho, 160 A.D.3d 501, 502, 71 N.Y.S.3d 355 [1st Dept. 2018]), we do not find that such circumstances are present here.

As determined in this Court's March 14, 2024, order affirming the denial of defendants’ motion for use and occupancy, the central question in this case is whether defendants’ alleged failure to provide elevator service constituted an actual partial eviction, “suspending plaintiff's obligation to pay rent or use and occupancy” for the period in question (Dye v. RBNB 20 Owner LLC, 225 A.D.3d 468, 468, 207 N.Y.S.3d 69 [1st Dept. 2024]).  Therefore, we find no basis for disturbing our earlier determination that the “remedy for any over or underpayment [of use and occupancy] is a speedy trial” (Dye v. RBNB 20 Owner LLC, 225 A.D.3d at 469, 207 N.Y.S.3d 69).

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