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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 27, 2021

Co-Op Owner Required to Pay Use and Occupancy For Maintenance Pendente Lite

On August 11, 2021, the Second Department issued a decision in Tavor v. Lane Towers Owners, Inc., 2021 NY Slip Op 04676, holding that a co-op owner was required to pay past and prospective use and occupancy for his maintenance pendente lite, and that this obligation arose not from an underlying contract between landlord and occupant but based on quantum meruit, explaining:

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. vCohen, 163 AD3d 814, 816, quoting Eighteen Assoc. v Nanjim Leasing Corp., 257 AD2d559, 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]).

Lessees, including lessees under a proprietary lease, can be required to pay amounts for “use and occupancy” during the pendency of an action as long as they continue to occupy the premises in question. The attorneys at Schlam Stone & Dolan LLP frequently litigate real-estate disputes and the application of provisional remedies. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning a real-estate dispute.

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