LANDLORD/TENANT - USE AND OCCUPANCY

Tavor v Lane Towers Owners, Inc., 2021 NY Slip Op 04676, Decided on August 11, 2021, Appellate Division, Second Department:

"The plaintiff is the proprietary lessee of two cooperative apartments in Queens. He owns shares of stock in the defendant Lane Towers Owners, Inc. (hereinafter Lane Towers), the cooperative housing corporation which owns the building where the subject apartments are located.

In November 2013, the plaintiff and Lane Towers entered into an agreement which provided, inter alia, that the plaintiff would receive a maintenance credit until certain repairs were completed by Lane Towers. Lane Towers credited the plaintiff's maintenance payments through November 30, 2015, when it asserted that it finished making the requisite repairs. Thereafter, Lane Towers advised the plaintiff that he was in breach of the proprietary leases based on his default in tendering his monthly maintenance payments.

In January 2017, the plaintiff commenced this action, inter alia, to recover damages [*2]for breach of contract, alleging, among other things, that the repairs had not been completed as required by the November 2013 agreement. In July 2018, the defendant Board of Directors of Lane Towers Owners, Inc. (hereinafter the Board), moved for an award of use and occupancy pendente lite. The plaintiff cross-moved for leave to amend the complaint and to disqualify the Board's counsel.

In an order dated February 6, 2019, the Supreme Court granted the Board's motion, and directed the plaintiff to pay the sum of $119,121.38 for past use and occupancy and to pay prospective use and occupancy during the pendency of this action, and denied the plaintiff's cross motion. By order dated July 9, 2019, the court, upon reargument, adhered to the original determination in the February 6, 2019 order. The plaintiff appeals.

Contrary to the plaintiff's contentions, the obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant. Rather, "'an occupant's duty to pay the landlord for its use and occupancy of the premises is predicated upon the theory of quantum meruit, and is imposed by law for the purpose of bringing about justice without reference to the intention of the parties'" (Matter of First Am. Tit. Ins. Co. v Cohen, 163 AD3d 814, 816, quoting Eighteen Assoc. v Nanjim Leasing Corp., 257 AD2d 559, 560; see 255 Butler Assoc., LLC v 255 Butler, LLC, 173 AD3d 651, 654).

Here, considering the plaintiff's continued use and occupancy of the apartments and the work performed by Lane Towers, the Supreme Court providently exercised its discretion in directing the plaintiff to pay for his use and occupancy of the apartments during the pendency of this action. Since this is a pendente lite award, the details of the financial equities can be remedied "by means of a speedy trial of the action" (Getty Props. Corp. v Getty Petroleum Mktg. Inc., 106 AD3d 429, 430 [internal quotation marks omitted])."

LANDLORD TENANT - USE & OCCUPANCY AND HOUSING VIOLATIONS

RPAPL Section 745(2)(a)(iv) enacted in the Housing Stability and Tenant Protection Act (“HSTPA”) provides “where a respondent has properly interposed a defense based upon the existence of hazardous or immediate hazardous violations of the housing maintenance code in the subject apartment or common areas, the court shall not order deposit or payment of use and occupancy.”

2167 Crotona Ave. HDFC v. Recio, NYLJ August 12, 2020, Date filed: 2020-07-27,     Court: Civil Court, Bronx, Judge: Judge Norma Jennings, Case Number: 001379/19:

"In this proceeding, respondent, in his answer raised the defense of warranty of habitability, and in his affidavit in opposition to the within motion for use and occupancy, alleges that there are outstanding hazardous conditions in the subject apartment. Respondent stated he commenced the HP action in February 2019 alleging several conditions which are still outstanding. Petitioner, however, alleges that the repairs were completed and on the last court appearance for the HP proceeding on December 12, 2019 the parties acknowledged that there was one outstanding violation for roach infestation. The parties arranged access for an exterminator on December 21, 2019, and if the extermination was not done, respondent never restored the proceeding to the court’s calendar to compel completion. The Court reviewed the HPD online website which indicates on June 11, 2020 HPD conducted an inspection of respondent’s apartment where the inspector found and recorded a class “C” violation for the infestation of roaches which was previously found by HPD on July 26, 2019 and is still outstanding. Therefore, pursuant to RPAPL 7452(a)(iv), the existence of this class “C” immediately hazardous condition, precludes the court from awarding petitioner use and occupancy, at this time.

Accordingly, petitioner’s motion for use and occupancy is denied without prejudice. The proceeding is adjourned to September 29, 2020 9:30a.m, Part K, room 350 to be referred to the expeditor for trial. Due to the ongoing Covid-19 pandemic, this date may be rescheduled by the court to a date when court operations have been fully restored. The parties will be notified of any date change."