Opinion
March 24, 1998
Appeal from the Appellate Term of the Supreme Court, First Department (Freedman and Davis, JJ.; McCooe, J. P., dissenting).
Defendant sublessees' counterclaim for rent overcharge is not reviewable by reason of law of the case, namely, Appellate Term's order entered March 4, 1987 directing defendants to pursue their overcharge claim before the Division of Housing and Community Renewal, which defendants did not do, and this Court's denial of defendants' motion for leave to appeal to this Court ( see, Glynwill Invs. v. Shearson Lehman Hutton, 216 A.D.2d 78). Defendants are liable to plaintiff for use and occupancy for the 28 months beyond the expiration of the sublease that they remained in possession of plaintiff's apartment without his permission ( see, C N Camera Elecs. v. Farmore Realty, 178 A.D.2d 310; 1133 Bldg. Corp. v. Ketchum Communications, 224 A.D.2d 336, lv dismissed 88 N.Y.2d 963, lv denied 89 N.Y.2d 816), and also for attorneys' fees, since this term of the lease continued into the holdover period ( see, Arol Dev. Corp. v. Goodie Brand Packing Corp., 83 Misc.2d 477, 479, aff'd 84 Misc.2d 493, 495).
Concur — Sullivan, J. P., Milonas, Rosenberger and Tom, JJ.