Landlord Can't Base Use & Occupancy for Former Super's Unit on Commercial Rent Estimates

Landlord sued its former building superintendent for use and occupancy for nine months that the super remained in his apartment at the building following termination of his employment. Landlord claimed that the amount due should be $121,732, based on a monthly estimate of u&o at $14,155 per month. Landlord based this estimate on a sworn statement from its managing agent, who represented that he was also a licensed real estate broker.

The court ruled against landlord. The court questioned landlord's effort to establish the fair market value of the super's apartment by using only a statement of its own agent, rather than a statement from an independent real estate broker. The court also pointed out that the submitted u&o estimate was based on commercial office space comparables rather than residential space such as that occupied by the super.

The court dismissed landlord's claim and held that, if landlord didn't submit a renewed claim based on appropriate valuation documentation from an outside source within 45 days, it would deny any further award of u&o except for good cause shown.

541 Constr. Corp. v. Anchundia: Index No. 158337/2022, 79 Misc.3d 1242(A), 2023 NY Slip Op 50852(U)(Sup. Ct. NY; 8/14/23; Levovits, J)