Opinion
November 24, 1992
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
The parties having moved and cross moved to confirm the Special Referee's report without questioning his recommendation with respect to the amount in which use and occupancy should be fixed, the IAS Court's adoption of that recommendation should not be reviewed on appeal (see, Matter of Angel Fabrics [Cravat Pierre], 51 A.D.2d 951, 952). In any event, we have reviewed the record of the hearing before the Special Referee and find no reason why his report should not have been confirmed (see, Namer v 152-54-56 W. 15th St. Realty Corp., 108 A.D.2d 705). We modify because in an action to recover possession of real property, damages for the withholding of the property, including the value of use and occupancy are recoverable (RPAPL 601; Rae v Sutbros Realty Corp., 6 A.D.2d 716, amended 6 A.D.2d 718, affd 6 N.Y.2d 963), from the time the tenant begins to hold over without the landlord's consent (see, Beacway Operating Corp. v Concert Arts Socy., 123 Misc.2d 452). The record supports plaintiff's claim that defendant began to hold over on March 1, 1991.
Concur — Carro, J.P., Milonas, Ellerin, Wallach and Kupferman, JJ.