State v. Charter Craft Corp. , 563 N.Y.S.2d 538 ( 1990 )

Mahoney, P. J.,

Appeal from an order of the Supreme Court (McDermott, J.), entered August 9, 1989 in Albany County, which denied plaintiffs motion for summary judgment.

Plaintiff appropriated property in the City of Rensselaer, Rensselaer County, in 1987. At the time of condemnation, defendant occupied the premises as a tenant paying $400 per month as rent. It remained in the premises until about August 1987. Plaintiff commenced this action to recover rent allegedly due and unpaid following the appropriation. Defendant answered, denying the material allegations of the complaint. Plaintiff then moved for summary judgment, which Supreme Court denied. Plaintiff appeals.

Defendant argues that because of problems with the premises, there was no fair market value for its rental so that summary judgment properly was denied. Defendant, however, is statutorily liable for rent at the fair and reasonable value of the premises (EDPL 305 [A]) and, therefore, summary judgment on the issue of liability is appropriate. Because defendant has raised questions concerning the fair market value of the rent for the premises, we believe that an immediate hearing to determine damages is appropriate (see, CPLR 3212 [c]; State of New York v Como Meat Packers, 124 AD2d 902, 903). Accordingly, the order denying summary judgment to plaintiff must be modified.

Order modified, on the law, without costs, by reversing so much thereof as denied plaintiff summary judgment on the issue of liability; summary judgment granted to plaintiff on the issue of liability; and, as so modified, affirmed. Mahoney, P. J., Kane, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.