Rosenberg & Estis, P.C. Victorious In The Appellate Division, First Department
Appellate Division, First Department
Decided: May 31, 2022
R&E Team: Norman Flitt and Alex M. Estis
Rosenberg & Estis, P.C. achieved yet another victory in the Appellate Division, where the Court granted R&E’s motion for modification of a temporary restraining order to direct the tenant to pay Use and Occupancy pending Supreme Court’s determination of R&E’s Motion for Use and Occupancy throughout the case.
R&E made the motion for interim use and occupancy before Justice Paul Goetz seeking Use and Occupancy from a commercial retail tenant who owes over $700,000 in rent arrears and is continuing to Use and Occupy its camera and luggage store in the premises. In connection with the motion, R&E sought a TRO which would immediately require use and occupancy to be paid directly to the landlord pending the hearing of the motion. Justice Goetz declined to sign the TRO, and R&E moved the Appellate Division to grant the TRO awarding Use and Occupancy pending Justice Goetz’s determination of the underlying motion.
On its motion at the Appellate Division, R&E cited long-standing precedent requiring Use and Occupancy to be paid by tenants who are using and occupying the premises.
“The Appellate Division has made it abundantly clear that commercial tenants cannot avoid paying rent and/or Use and Occupancy while continuing to use and occupy the leased space and litigating their claims. To hold otherwise, would be unfair and unequitable to commercial landlords and grant an inappropriate windfall to the non-paying tenant,” said Norman Flitt.
Norman Flitt, Member, and Alex M. Estis, Of Counsel, represented the landlord.