Kenilworth Equities Ltd. v Di Donato

[*1] Kenilworth Equities Ltd. v Di Donato 2005 NYSlipOp 51036(U) Decided on June 28, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: June 28, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-1366 S C

Kenilworth Equities Ltd., Respondent,

against

William Di Donato, Tenant, -and- THOMAS NATOLI, Appellant.

Appeal by occupant Thomas Natoli from a final judgment of the District Court, Suffolk County (J. Flanagan, J.), entered February 9, 2004, awarding landlord possession and the sum of $3,995.

Final judgment unanimously modified by striking the provision thereof awarding "rent" in the sum of $3,995 as against Thomas Natoli and substituting therefor an award of $1,950, representing use and occupancy for the months of January and February, 2004; as so modified, affirmed without costs. [*2]

In this holdover summary proceeding, landlord established that occupant Thomas Natoli was not a party to the lease between landlord and tenant of record, William Di Donato; that Di Donato did not live in the apartment, and that Natoli remained in the apartment beyond the expiration of Di Donato's lease without landlord's permission. Therefore, landlord is entitled to a final judgment of possession as well as use and occupancy for the period subsequent to the expiration of the lease against Natoli, as use and occupancy is based upon principles of quantum meruit, not the existence of a contract, i.e., a lease (see Eighteen Assocs. v Nanjim Leasing Corp., 257 AD2d 559 [1999]; Philips v Cohen, 2002 NY Slip Op 40235[U] [App Term, 9th & 10th Jud Dists]). However, awards of rent and attorney's fees, which form part of the money judgment herein, may not be made based on the terms of the lease against a non-party to the lease. As Di Donato was the sole tenant named in the lease and the sole respondent in the summary proceeding bound by its terms, the portions of the final judgment attributable to rent and attorney's fees based on the lease apply only to him, and landlord may not recover a money judgment representing these items as against Natoli. [*3]

Conversely, Natoli does not have standing to assert a claim of retaliatory eviction (Real Property Law § 223-b; see Two Assocs. v Brown, 127 AD2d 173 [1987]). Since there was no proper proof in the record to support landlord's claim for use and occupancy at the increased rate of $1,060 per month, we award use and occupancy only at the lease rate of $975 per month.
Decision Date: June 28, 2005