Use and Occupancy Award Based on Fair Market Rent

Landlord sued former tenant of rent-stabilized apartment for fair market use and occupancy, as well as attorney’s fees, after landlord won a nonprimary residence case against tenant. The trial court, by special referee, awarded landlord $246,000 in fair market use and occupancy, and $344,000 in attorneys’ fees. Tenant appealed and lost. Tenant’s failure to appeal from court’s original order and judgment didn’t warrant dismissal of her entire appeal, but she couldn’t now raise a claim that use and occupancy should be based on the last rent-stabilized rent rather than the market rent for the apartment. In addition, tenant never had the right to a rent-stabilized apartment since, by law, her primary residence was in another country, and, therefore, there was no basis for using the rent-stabilized rent to determine use and occupancy. Landlord was also entitled to the attorney’s fees awarded since tenant never appeared before the referee despite several adjournments to permit her to do so.

Katz Park Avenue Corp. v. Jagger: 2012 NY Slip Op 06391, 2012 WL 4450289 (App. Div. 1 Dept.; Tom, JP, Mazzarelli, Saxe, Catterson, JJ)