Opinion
October 22, 1992
Appeal from the Supreme Court, New York County (Myriam J. Altman, J.).
Plaintiffs failed to pay use and occupancy (RPAPL 749), and accordingly, defendant is entitled to an order of possession (see, Calvert v Le Tam Realty Corp., 118 A.D.2d 426). Counterclaim defendant is not physically in possession but claims such right pursuant to a Surrender Agreement from plaintiff and the court properly ordered counterclaim defendant to post an undertaking.
Concur — Carro, J.P., Milonas, Ellerin and Asch, JJ.