Preview
FILED: NEW YORK COUNTY CLERK 06/17/2022 12:07 PM INDEX NO. 657772/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 06/16/2022
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DEBRA JAMES PART 59
Justice
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INDEX NO. 657772/2019
HOTEL 237, LLC,
MOTION DATE 06/15/2021
Plaintiff,
MOTION SEQ. NO. 003
-v-
G.M. CANMAR RESIDENCE CORP., DECISION + ORDER ON
MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 003) 84, 85, 86, 87, 88,
89, 90, 91, 92, 93, 94, 95, 96
were read on this motion to/for RENEW/REARGUE .
ORDER
Upon the foregoing documents, it is
ORDERED that the motion of plaintiff for leave to reargue
defendant’s motion for an order directing plaintiff to pay use and
occupancy pendent lite is granted; and it is further
ORDERED that, upon reargument, the Court adheres to its
Decision and Order, dated May 6, 2022 (Decision and Order),
granting such motion directing plaintiff to pay use and occupancy;
and it is further
ORDERED that the effective date for payment of use and
occupancy by plaintiff under the foregoing Decision and Order, is
within ten (10) days of service of a copy of this order with notice
of entry.
657772/2019 HOTEL 237, LLC vs. G.M. CANMAR RESIDENCE CORP. Page 1 of 3
Motion No. 003
1 of 3
FILED: NEW YORK COUNTY CLERK 06/17/2022 12:07 PM INDEX NO. 657772/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 06/16/2022
DECISION
Plaintiff has cited no case law that stands for the
principle that claiming primary tenancy under a lease, it may
not be compelled to pay use and occupancy to the owner/landlord,
with whom it is in privity, unless it has not sublet the
premises. Illogical is plaintiff’s argument that a landlord
cannot obtain use and occupancy from its primary tenant, but
only from any subtenant in occupancy of the premises.
Hudson-Spring Partnership, L.P. v P+M Design Consultants,
Inc., 112 AD3d 419 (1st Dept. 2013) is instructive. In its
opinion, the Appellate Division, First Department, stated, in
pertinent part:
“Poulin+Morris, the John Doe defendants, and/or the John
Doe Company defendants may be liable for use and occupancy,
even though the lease was between plaintiff and P+M. If
Poulin+Morris, the John Does, and/or the John Doe Companies
were occupying the spaced leased by P+M, they were, in
effect, P+M’s subtenants (citations omitted).”
Thus, Hudson-Spring stands for the proposition that the primary
tenant, in privity with the landlord under a lease, is liable, a
fortiori, for use and occupancy, whether or not, in lieu of
itself occupying such premises, it has sublet the premises to
another. Defendant’s argument that a lessee claiming primary
tenancy rights may avoid the obligation to pay use and occupancy
to the primary lessor by simply subletting the premises is
without merit.
657772/2019 HOTEL 237, LLC vs. G.M. CANMAR RESIDENCE CORP. Page 2 of 3
Motion No. 003
2 of 3
FILED: NEW YORK COUNTY CLERK 06/17/2022 12:07 PM INDEX NO. 657772/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 06/16/2022
Nor does this court’s order dated May 10, 2022 in Hersh v
Beda, NY County Supreme Court Index No. 160061/2021 (NYSCEF
Document Number 87), which involves wholly different parties,
command a different result herein.
6/16/2022
DATE DEBRA JAMES, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
657772/2019 HOTEL 237, LLC vs. G.M. CANMAR RESIDENCE CORP. Page 3 of 3
Motion No. 003
3 of 3
Preview
FILED: NEW YORK COUNTY CLERK 06/17/2022 12:07 PM INDEX NO. 657772/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 06/16/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA JAMES PART 59 Justice ---------------------------------------------------------------------------------X INDEX NO. 657772/2019 HOTEL 237, LLC, MOTION DATE 06/15/2021 Plaintiff, MOTION SEQ. NO. 003 -v- G.M. CANMAR RESIDENCE CORP., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96 were read on this motion to/for RENEW/REARGUE . ORDER Upon the foregoing documents, it is ORDERED that the motion of plaintiff for leave to reargue defendant’s motion for an order directing plaintiff to pay use and occupancy pendent lite is granted; and it is further ORDERED that, upon reargument, the Court adheres to its Decision and Order, dated May 6, 2022 (Decision and Order), granting such motion directing plaintiff to pay use and occupancy; and it is further ORDERED that the effective date for payment of use and occupancy by plaintiff under the foregoing Decision and Order, is within ten (10) days of service of a copy of this order with notice of entry. 657772/2019 HOTEL 237, LLC vs. G.M. CANMAR RESIDENCE CORP. Page 1 of 3 Motion No. 003 1 of 3 FILED: NEW YORK COUNTY CLERK 06/17/2022 12:07 PM INDEX NO. 657772/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 06/16/2022 DECISION Plaintiff has cited no case law that stands for the principle that claiming primary tenancy under a lease, it may not be compelled to pay use and occupancy to the owner/landlord, with whom it is in privity, unless it has not sublet the premises. Illogical is plaintiff’s argument that a landlord cannot obtain use and occupancy from its primary tenant, but only from any subtenant in occupancy of the premises. Hudson-Spring Partnership, L.P. v P+M Design Consultants, Inc., 112 AD3d 419 (1st Dept. 2013) is instructive. In its opinion, the Appellate Division, First Department, stated, in pertinent part: “Poulin+Morris, the John Doe defendants, and/or the John Doe Company defendants may be liable for use and occupancy, even though the lease was between plaintiff and P+M. If Poulin+Morris, the John Does, and/or the John Doe Companies were occupying the spaced leased by P+M, they were, in effect, P+M’s subtenants (citations omitted).” Thus, Hudson-Spring stands for the proposition that the primary tenant, in privity with the landlord under a lease, is liable, a fortiori, for use and occupancy, whether or not, in lieu of itself occupying such premises, it has sublet the premises to another. Defendant’s argument that a lessee claiming primary tenancy rights may avoid the obligation to pay use and occupancy to the primary lessor by simply subletting the premises is without merit. 657772/2019 HOTEL 237, LLC vs. G.M. CANMAR RESIDENCE CORP. Page 2 of 3 Motion No. 003 2 of 3 FILED: NEW YORK COUNTY CLERK 06/17/2022 12:07 PM INDEX NO. 657772/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 06/16/2022 Nor does this court’s order dated May 10, 2022 in Hersh v Beda, NY County Supreme Court Index No. 160061/2021 (NYSCEF Document Number 87), which involves wholly different parties, command a different result herein. 6/16/2022 DATE DEBRA JAMES, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 657772/2019 HOTEL 237, LLC vs. G.M. CANMAR RESIDENCE CORP. Page 3 of 3 Motion No. 003 3 of 3