541 Constr. Corp. v Anchundia
Annotate this CaseDecided on August 14, 2023
Supreme Court, New York County
541 Construction Corp., Plaintiff,
against
Lenin Anchundia, JOHN DOE, and JANE DOE, Defendants.
Index No. 158337/2022
Belkin Burden Wenig & Goldman, LLP, New York, NY (Christina M. Browne of counsel), for plaintiff.
No appearance for defendant Lenin Anchundia. Gerald Lebovits, J.
Plaintiff, 541 Construction Corp., brings this motion to determine the amount of the use and occupancy (U&O) to which it is entitled from its former building superintendent, defendant Lenin Anchundia, for the nine months in which Anchundia remained in possession of his unit in the building after his termination as the super. (See NYSCEF No. 21 at 2, 3 [holding that plaintiff is entitled to possession of the unit as against Anchundia and permitting plaintiff to move on notice to determine the amount of U&O owed by Anchundia].) Plaintiff seeks a judgment for $121,732.94, reflecting monthly U&O of $14,155. Plaintiff's motion is denied.
Plaintiff relies on an affidavit from the CEO of its managing agent, who represents that he is also an experienced real-estate broker. (See NYSCEF No. 27 at ¶ 1; compare with NYSCEF No. 9 at ¶ 1 [affidavit of managing agent's chief operating officer, submitted by plaintiff in support of its prior summary-judgment motion].) The affidavit represents that the affiant "compiled a list of comparable office spaces" in the area during the relevant period (NYSCEF No. 27 at ¶ 4), which the affiant lists in an appended one-page letter to plaintiff (see [*2]NYSCEF No. 29).[FN1] Using that list of comparables, the affidavit says, affiant concludes that the fair-market value of the space is $40/square foot and that the unit at issue is "comprised of 4,246 square feet of rentable space (after applying a 27% loss factor)," leading to a monthly rental value of $14,155. (NYSCEF No. 27 at ¶¶ 3, 5.) This limited showing is insufficient to satisfy plaintiff's burden to establish fair-market value for U&O purposes. (See Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [1st Dept 2011].)
As an initial matter, this court is skeptical of plaintiff's effort, in essence, to establish fair-market value using only evidence that plaintiff itself generated, rather than through the opinion of an outside party such as an independent real-estate broker.
Even taken on its own terms, plaintiff's managing agent's affidavit and letter, on which plaintiff relies, suffers from several infirmities. The managing agent is using commercial-office-space comparables. (See NYSCEF No. 27 at ¶ 4; NYSCEF No. 29.) But the premises at issue were used as residential space by Anchundia during his tenure as super. The managing agent's letter and affidavit do not discuss whether the premises were suitable for conversion to commercial office space; nor how the need to convert the space from residential to commercial/office use would affect the premises' rental value.[FN2] For that matter, the affidavit does not identify the basis for the affiant's statement that the premises comprise over 4,000 square feet (NYSCEF No. 27 at ¶ 3)—a figure that appears nowhere else in the record.
The managing agent's one-page letter accompanying his affidavit is also insufficient to establish the probative value of his chosen comparables.
The letter identifies in a chart seven other commercial premises in the area around plaintiff's building. The chart lists with those premises' floor, square footage and rent per square foot; when the leases for those premises were signed; and a one or two-word description of the industries for which those premises are used. (NYSCEF No. 29.) The letter states, without elaboration, that from this information plaintiff's managing agent derived a rent-per-square-foot figure for plaintiff's premises that equals the highest of the seven comparables. (See id.) That's it.
Plaintiff's managing agent does not describe his chosen comparables or explain why those premises are the most similar to the unit for which plaintiff seeks U&O. He does not discuss the variations among the comparables in location, size, use, and rent-per-square-foot, how those factors affected his valuation assessment for plaintiff's unit, whether any adjustments were required, and how he arrived at a value at the high end of his chosen comparables. And he does not provide any documentation to corroborate his (brief) descriptions of those comparables set out in the proffered chart.
On this paltry showing, plaintiff contends that it is entitled to a money judgment from its former super of $121,732.94 for nine months of occupancy. This court is unpersuaded.
Accordingly, it is
ORDERED that plaintiff's motion for an award of use and occupancy is denied; and it is further
ORDERED that if plaintiff does not file a renewed motion for use and occupancy, supported by appropriate valuation documentation from an outside source, within 45 days of entry of this order, absent good cause shown any motion for use and occupancy brought thereafter will be denied; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of its entry on Anchundia by certified mail, return receipt requested, directed to his last-known address.
DATE 8/14/2023 FootnotesFootnote 1: Where the premises at issue were originally occupied under a lease, the monthly rent provided for by the lease is probative of fair-market rental value (see Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [1st Dept 2011]); but plaintiff has represented that Anchundia "never executed a lease or occupancy agreement related to the Unit" (NYSCEF No. 9 at ¶ 6.)
Footnote 2: Plaintiff's fair-market-value affidavit and accompanying letter reference a "27% loss factor." (NYSCEF No. 27 at ¶ 3; NYSCEF No. 29.) Plaintiff's submissions do not explain or establish what that loss factor consists of, what it applies to, or how it was determined.
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