June 13, 2013
10362N 43rd Street Deli, Inc., Plaintiff-Appellant,
Paramount Leasehold, L.P., Defendant-Respondent.
Cornicello, Tendler & Baumel-Cornicello, LLP, New York(Susan Baumel-Cornicello of counsel), for appellant.
Rosenberg & Estis, P.C., New York (Jeffrey Turkel of counsel), for respondent.
Tom, J.P., Friedman, Freedman, Feinman, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 9, 2012, which granted defendant's motion seeking use and occupancy to the extent of setting the matter down for a hearing before a referee to hear and determine the amount owed by plaintiff for monthly use and occupancy pending the outcome of this action, unanimously affirmed, without costs.
A court has broad discretion in awarding use and occupancy pendente lite (see Alphonse Hotel Corp. v 76 Corp., 273 A.D.2d 124 [1st Dept 2000]). Although the court may look to the amount of rent paid under a prior lease between the parties in setting use and occupancy (see Kuo Po Trading Co. v Tsung Tsin Assn., 273 A.D.2d 111 [1st Dept 2000]), prior rent is only probative, not dispositive, on the issue (see Mushlam, Inc. v Nazor, 80 A.D.3d 471, 472 [1st Dept 2011]). Moreover, the court may refer the issue to a referee.
Here, under the lease in question, a new rent value is set when a tenant exercises its right of renewal. However, that right is only available to a tenant who is not in default. Since this suit is, in part, based upon plaintiff tenant's alleged default, and defendant landlord alleges that the lease has lapsed, making plaintiff a holdover tenant, it would be premature to find that the rent under the lease is the correct pendente lite payment (compare New York Physicians LLP v Ironwood Realty Corp., 103 A.D.3d 410 [1st Dept 2013]).
To the extent that plaintiff is ultimately successful at trial, it may be provided with a refund or rent credit (see Morris Hgts. Health Ctr., Inc. v DellaPietra, 38 A.D.3d 261 [1st Dept 2007], lv dismissed 9 N.Y.3d 887 ).