Opinion
Index No. 652145/2024
07-01-2024
S.J.C. 308 Lenox Avenue Family Limited Partnership, Plaintiff, v. Hendrix House Harlem, LLC, et al., Defendants.
Rosenberg & Estis, P.C., New York, NY (Bradley S. Silverbush of counsel), for plaintiff. Martone & Associates, LLC, Fort Lee, NY (Christopher S. Martone of counsel), for defendants.
Unpublished Opinion
Rosenberg & Estis, P.C., New York, NY (Bradley S. Silverbush of counsel), for plaintiff.
Martone & Associates, LLC, Fort Lee, NY (Christopher S. Martone of counsel), for defendants.
Gerald Lebovits, J.
In this action on a commercial lease and guaranty, plaintiff, S.J.C. 308 Lenox Avenue Family Limited Partnership, moves for a money judgment against defendants, Hendrix House Harlem, LLC (Tenant), and Hendrix House Holdings, Inc., Jamile L. Boseman, Antonio L. Brooks, Sherrida Darelene Dawson, and Ricardo Henry (Guarantors), for use and occupancy pendente lite in the amount of $45,000 a month for May 2024 and on the first day of each month thereafter. The motion is granted.
Plaintiff alleges that Tenant defaulted under the lease by failing to pay rent pursuant to Article 17.1 of the parties' written lease. (NYSCEF No. 5 at 12-13.) Plaintiff served a notice of default under article 17.1 and a notice of termination under article 17.2 of the lease. (NYSCEF No. 5 at 12-13; NYSCEF No. 7; NYSCEF No. 8.) Plaintiff alleges that Tenant did not vacate the premises by the termination date and instead held over in possession. (NYSCEF No. 3 at 5.) Guarantors guarantee Tenant's performance, and Guarantors' obligations extend after the lease terminates. (NYSCEF No. 5 at 15; NYSCEF No. 6.) Under Article 19 of the lease, the parties agreed that the use and occupancy during the holdover period is 150% of the rent payable as of the termination date, which is $45,000 a month. (NYSCEF No. 5 at 15.)
Real Property Law § 220 permits a landlord to recover "a reasonable compensation for the use and occupation of real property, by any person, under an agreement." The First Department has ruled that a commercial landlord is able to recover use and occupancy pendente lite in a plenary action, "as it would have been manifestly unfair for defendant to remain in possession of the subject premises without paying." (10E53 Owner LLC v Bruderman Asset Mgmt., 202 A.D.3d 609, 609 [1st Dept 2022].)
In defendants' affidavit, written by a member of Tenant in opposition to plaintiff's motion seeking use and occupancy, defendants argue that plaintiff "has not established that a valid default arose and therefore they are not entitled to a use and occupancy award determination." (NYSCEF No. 23 at 2.) Defendants only reinstate the allegations made in their answer and argue that plaintiff's actions made defendants' performance impossible, without explaining the nature of the allegations and how these allegations support their position. (NYSCEF No. 23 at 1.) Defendants present no valid legal argument in opposition to plaintiff's motion and supply no evidence other than the affidavit to support their allegations. Even if defendants' allegations were true, defendants would not be absolved of their obligation to pay use and occupancy, because "the obligation to pay rent pursuant to a commercial lease is an independent covenant, and thus, cannot be relieved by allegations of a landlord's breach, absent an express provision to the contrary." (Universal Communications Network, Inc. v 229 W. 28th Owner, LLC, 85 A.D.3d 668, 669 [1st Dept 2011].)
Accordingly, it is
ORDERED that plaintiff's motion seeking use and occupancy is granted. Defendants to pay the outstanding use and occupancy at $45,000 per month for the months of May and June 2024, and $45,000 on the first day of each month thereafter without prejudice.