Court to Set Amount of Monthly Use and Occupancy Based on DHCR Determination of Legal Rent

Landlord sued tenants for ejectment and to recover damages for use and occupancy. The court ruled for landlord in part, entering a default judgment against tenants, but denied landlord's request for prospective use and occupancy while the case was pending. Landlord and tenant both appealed, and the appeals court reversed the decision. The lower court abused its discretion by granting landlord's request for entry of a default judgment, but also abused its discretion by denying landlord's request for prospective use and occupancy while the case was pending and for posting of an undertaking by tenant for the amount of past use and occupancy. The case was sent back to the lower court to determine an appropriate monthly rent to be applied for tenant's rent-stabilized apartment, as well as for a reasonable undertaking to be posted by tenant as security for her potential liability for past use and occupancy. The appropriate rent should be based on the lowest rent charged for a rent-stabilized apartment with the same number of rooms in the same building on the relevant base date. The DHCR would determine the apartment's legal regulated rent.

Esposito v. Larig: Index No. 2017-10057 (517226/16), 2019 NY Slip Op 05515 (App. Div. 2 Dept.; 7/10/19; Scheinkman, PJ, Chambers, Austin, Duffy, JJ)