Summary
In Eighteen Assoc., the issue was whether the occupant was required to pay use and occupancy when there was no privity between occupant and landlord.
Summary of this case from 140 W. 28th St. Asso. v. 140 W. Asso.Opinion
January 19, 1999.
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellants, who formerly subleased office space in the plaintiff's building, contend that the plaintiff may not recover damages for their use and occupancy of the premises because they were not parties to its lease with the tenant. However, the absence of privity of contract is not a bar to a cause of action to recover damages for use and occupancy ( see, 19 W. 45th St. Realty Co. v. Doram Elec. Corp., 233 A.D.2d 184; Ministers, Elders Deacons of Refm. Prot. Dutch Church v. 198 Broadway, 152 Misc.2d 936, 942). The obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant ( see, Ministers, Elders Deacons of Refm. Prot. Dutch Church v. 198 Broadway, supra). Rather, an occupant's duty to pay the landlord for its use and occupancy of the premises is predicated upon the theory of quantum meruit, and is "imposed by law for the purpose of bringing about justice without reference to the intention of the parties" ( Rand Prods. Co. v. Mintz, 72 Misc.2d 621, quoting 1 Williston, Contracts § 3A, at 13 [3d ed]). Accordingly, the Supreme Court properly denied the appellants' motion to dismiss the complaint insofar as asserted against them.
O'Brien, J.P., Sullivan, Krausman and Florio, JJ., concur.