Quiala v. Laufer

Order, Supreme Court, New York County (Carol H. Arbor, J.), entered August 27, 1992 which denied the defendant landlord’s motion for a judgment in his favor on his second counterclaim for use and occupancy for the subject apartment, unanimously reversed, on the law and the facts, insofar as to remand the matter back to the trial court for further proceedings to determine the amount of use and occupancy due the defendant for the subject apartment, without costs.

On a prior appeal in this declaratory judgment action, this Court, inter alia, reversed the Supreme Court’s declaration that plaintiff Manuela Quiala was entitled to a renewal lease with respect to the subject apartment, number 6-F at 139 West 82nd Street in Manhattan, on behalf of her infant children (180 AD2d 31, lv dismissed 80 NY2d 924, rearg denied 80 NY2d 926). There was insufficient evidence in the record on appeal at that juncture for this Court to make a conclusive determination of the amount due on defendant’s second counterclaim for use and occupancy. However, given the prior determinations of this Court and the Court of Appeals, there should have been no question that the defendant landlord was entitled to payment for use and occupancy with respect to the subject apartment. Accordingly, we remand the matter for a determination of the amount of use and occupancy due. Concur—Milonas, J. P., Rosenberger, Wallach and Ross, JJ.