Opinion
Decided February 5, 1998
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
Interim use and occupancy was properly awarded in an amount higher than the rent stated in the tenant's lease, and without consideration of the merits of the landlord's claim that the tenant was a holdover by reason of nonprimary residence, because, by order of the Division of Housing and Community Renewal, the apartment had become deregulated upon expiration of the lease. Pending the immediately scheduled hearing before the Special Referee, at which the tenant failed to appear, and in the absence of countervailing proof from the tenant, the amount of interim use and occupancy was properly based on the affidavit of one of plaintiff's principals, who, while interested, clearly had knowledge of the building and of the rental value of its apartments. The tenant's failure to pay the interim use and occupancy was a violation of a condition to her right to remain in the apartment, "permitting defendant [landlord] to apply for appropriate relief, e.g., a money judgment, or eviction, or both" (Hodo v. Serrecchia, 102 A.D.2d 807). We have considered appellants' other arguments and find them to be without merit.
Concur — Milonas, J. P., Rosenberger, Ellerin and Tom, JJ.