Opinion
No. 2013–257QC.
2014-07-28
Sushil RUSTAGI, Appellant, v. Carlos–Lima SANCHEZ, Respondent.
Present: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 12, 2012. The judgment, after a nonjury trial, dismissed the action.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $4,290.32.
Prior to commencing this small claims action, plaintiff had brought a summary proceeding against defendant, plaintiff's former tenant. From the record before this court, it appears that the summary proceeding resulted in a final judgment awarding plaintiff possession and arrears through March 2012, and that defendant was evicted on July 2, 2012. In this action, plaintiff seeks to recover use and occupancy for April 2012 through July 2012, as well as for damage to the apartment. After a nonjury trial, the Civil Court dismissed plaintiff's action, finding that plaintiff had failed to make out a prima facie case that he was entitled to rent and, and, in any event, that plaintiff had waived the rent.
In our view, the judgment did not render substantial justice between the parties according to the rules and principles of substantive law ( see CCA 1804, 1807; Ross v. Friedman, 269 A.D.2d 584 [2000] ).
Plaintiff established that he was defendant's landlord by submitting into evidence a written month-to-month lease, and documents from the summary proceeding which established that he was the landlord. Moreover, defendant admitted at trial that he had paid rent to plaintiff. It is well settled that a landlord may bring a separate action to recover the use and occupancy which accrued after the entry of a final judgment in a summary proceeding ( see Wahl v. Warren, 19 Misc.3d 130[A], 2008 N.Y. Slip Op 50537[U] [App Term, 9th & 10th Jud Dists 2008]; see generally Fisher Ave. Realty Partners v. Hausch, 186 Misc.2d 609 [App Term, 9th & 10th Jud Dists 2000] ). Contrary to the Civil Court's determination, plaintiff did not, in the stipulation entered into in the summary proceeding, waive his right to the use and occupancy for the period in question. We note that in determining the amount of use and occupancy, the rule against apportionment, which applies to rents, does not apply ( Wahl, 19 Misc.3d 130[A], 2008 N.Y. Slip Op 50537[U]; Marron v. Liebenow, NYLJ, June 22, 1994 [App Term, 9th & 10th Jud Dists]; Elliot v. Polny, 132 Misc.2d 236 [Civ Ct, N.Y. County 1986]; see also Hoppenstein v. Street Beat Sportswear, NYLJ, Apr. 16, 1996 [App Term, 1st Dept] ). As it is undisputed that defendant was evicted on July 2, 2012, we find that plaintiff established his entitlement to use and occupancy from April 2012 through July 2, 2012. We further find that plaintiff failed to properly prove the cost of repairing the damage to the premises ( see CCA 1804).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment awarding plaintiff the principal sum of $4,290.32, representing three months and two days of use and occupancy at the monthly rate of $1,400.