43rd Street Deli, Inc. v. Paramount Leasehold, L.P.

Appellate Division of the Supreme Court of New York

43rd Street Deli, Inc. v. Paramount Leasehold, L.P.

107 A.D.3d 501, 967 N.Y.S.2d 61

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 13, 2013

StatusPublished

This text of 107 A.D.3d 501 (43rd Street Deli, Inc. v. Paramount Leasehold, L.P.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

43rd Street Deli, Inc. v. Paramount Leasehold, L.P., 107 A.D.3d 501, 967 N.Y.S.2d 61 (N.Y. Ct. App. 2013).

Pincite

Opinion

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 9, 2012, which granted defendant’s motion seeking use and occupancy to the extent of setting the matter down for a hearing before a referee to hear and determine the amount owed by plaintiff for monthly use and occupancy pending the outcome of this action, unanimously affirmed, without costs.

A court has broad discretion in awarding use and occupancy pendente lite (see Alphonse Hotel Corp. v 76 Corp., 273 AD2d 124 [1st Dept 2000]). Although the court may look to the amount of rent paid under a prior lease between the parties in setting use and occupancy (see Kuo Po Trading Co. v Tsung Tsin Assn., 273 AD2d 111 [1st Dept 2000]), prior rent is only probative, not dispositive, on the issue (see Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [1st Dept 2011]). Moreover, the court may refer the issue to a referee.

Here, under the lease in question, a new rent value is set when a tenant exercises its right of renewal. However, that right is only available to a tenant who is not in default. Since this suit is, in part, based upon plaintiff tenant’s alleged default, and defendant landlord alleges that the lease has lapsed, making plaintiff a holdover tenant, it would be premature to find that the rent under the lease is the correct pendente lite pay[502]*502ment (compare New York Physicians LLP v Ironwood Realty Corp., 103 AD3d 410 [1st Dept 2013]).

To the extent that plaintiff is ultimately successful at trial, it may be provided with a refund or rent credit (see Morris Hgts. Health Ctr., Inc. v DellaPietra, 38 AD3d 261 [1st Dept 2007], lv dismissed 9 NY3d 887 [2007]). Concur — Tom, J.P., Friedman, Freedman and Feinman, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 9, 2012, which granted defendant’s motion seeking use and occupancy to the extent of setting the matter down for a hearing before a referee to hear and determine the amount owed by plaintiff for monthly use and occupancy pending the outcome of this action, unanimously affirmed, without costs.

A court has broad discretion in awarding use and occupancy pendente lite (see Alphonse Hotel Corp. v 76 Corp., 273 AD2d 124 [1st Dept 2000]). Although the court may look to the amount of rent paid under a prior lease between the parties in setting use and occupancy (see Kuo Po Trading Co. v Tsung Tsin Assn., 273 AD2d 111 [1st Dept 2000]), prior rent is only probative, not dispositive, on the issue (see Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [1st Dept 2011]). Moreover, the court may refer the issue to a referee.

Here, under the lease in question, a new rent value is set when a tenant exercises its right of renewal. However, that right is only available to a tenant who is not in default. Since this suit is, in part, based upon plaintiff tenant’s alleged default, and defendant landlord alleges that the lease has lapsed, making plaintiff a holdover tenant, it would be premature to find that the rent under the lease is the correct pendente lite pay[502]*502ment (compare New York Physicians LLP v Ironwood Realty Corp., 103 AD3d 410 [1st Dept 2013]).

To the extent that plaintiff is ultimately successful at trial, it may be provided with a refund or rent credit (see Morris Hgts. Health Ctr., Inc. v DellaPietra, 38 AD3d 261 [1st Dept 2007], lv dismissed 9 NY3d 887 [2007]). Concur — Tom, J.P., Friedman, Freedman and Feinman, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

107 A.D.3d 501, 967 N.Y.S.2d 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/43rd-street-deli-inc-v-paramount-leasehold-lp-nyappdiv-2013.

Opinion

Related

Cite This Page — Counsel Stack