Opinion
108861/04.
Decided February 17, 2005.
Petitioner commenced this commercial holdover action to evict Respondent who had been renting the premises for a period of approximately seven years without the benefit of a written lease. The premises in question is a vacant lot upon which Respondent stored cars that he remodeled and repaired for resale.
Petitioner acquired title to the property in February of 2004, and in October served Respondent with a 30-day Notice to Quit. After the thirty days elapsed, this proceeding commenced with the service of a Notice of Petition and Petition. By the date of trial Respondent had not paid Petitioner for the use of the property for a period of five months. Respondent had been paying a monthly rent of $300.
After trial, the court found for Petitioner and issued a warrant forthwith, but stayed execution of the warrant until the end of April, 2005. The only question remaining for the court is to determine the appropriate amount of use and occupancy Respondent must pay to Petitioner.
Real Property Law section 220 provides that a landlord can recover use and occupancy for the reasonable value of the premises and for use of those premises. It is the landlord's burden to prove the reasonable value. 438 W. 19th St. Operating Corp. v. Metropolitan Oldsmobile, Inc., 142 Misc 2d 170, 536 N.Y.S. 2d 669 (New York County 1989). The obligation to pay use and occupancy does not arise from an underlying contract between the parties, but is predicated upon the theory of quantum meruit, and is imposed by law for the purpose of bringing about justice without reference to the intentions of the parties. Bethlehem Baptist Church v. The Trey Whitfield School, 2003 NY Slip Op. 50972U, 22003 NY Misc. Lexis 639 (Kings County 2003).
In coming to a determination of the value of use and occupancy, the rent reserved under the lease is not conclusive, although it is certainly of some probative value. "Reasonable value" is fair market value, that is, the amount in cash which a willing purchase would pay and a willing seller would take. Beacway Operating Corporation v. Concert Arts Society, Inc., 123 Misc 2d 452, 474 N.Y.S. 2d 227 (New York County 1984). In order to determine the reasonable value of the property, the court may only fix a figure after having received competent evidence of the value of the premises. See Zombek v. Williams, 124 AD2d 524, 508 N.Y.S. 2d 439 (1st Dept. 1986).
In the instant case, the only evidence submitted with respect to the appropriate amount of use and occupancy was the testimony of the Petitioner himself. Petitioner testified that he had a potential tenant for the property who was willing to pay a rent of $1800 per month, but he could provide no documentation to that effect. Respondent further testified as to his actual expenses with respect to maintaining the property, such as taxes, mortgage, interest and so forth, which he maintained could also be used as a gauge to determine reasonable value.
The reasonable and fair value for use and occupancy of the premises is the rental value that the premises would have obtained in the open market. In the Matter of the Estate of Seviroli, 2004 NY Slip Op. 51659U, 2004 NY Misc. Lexis 2746 (Nassau County 2004) To prove this value, the proponent must produce an expert who can provide an expert opinion of what the fair rental price would be in the open market. Id. The testimony of the Respondent alone, without any documentation to back up his assertions, is not conclusive of value for the court's ultimate decision.
The court cannot consider a landlord's expense in upkeep of the premises as binding with respect to rental value, since oftimes expenses may exceed income. Further, the expenses of a successor landlord may be greater than those of the initial lessor, but that would not affect a tenant's rights or obligations.
Because Petitioner has not presented the court with any expert testimony, witnesses or documentation with respect to the reasonable rental value of his vacant lot, the court concludes that the rate of use and occupancy shall continue at $300 per month.
Respondent is hereby ordered to pay Petitioner the sum of $1500, representing use and occupancy for the five months use of the property prior to trial, and is further ordered to pay Petitioner $300 a month use and occupancy for the months of March and April, 2005, in order to stay execution of the warrant.
This constitutes the decision and order of the court.