Appeal from a judgment of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered July 3, 2006. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $1,600.

Judgment modified by reducing the amount of the award in favor of plaintiffs to the principal sum of $490.87; as so modified, affirmed without costs.

In this small claims action, plaintiffs seek damages for use and occupancy from defendants, their former tenants. After purchasing the house in May 2005 subject to defendants' tenancy, plaintiffs notified defendants that they would not renew their lease when it expired on July 31, 2005. Defendants, long-term tenants in the premises who
believed that they had a right to purchase, held over after the expiration of the lease, whereupon plaintiffs commenced a holdover proceeding. The holdover proceeding resulted in an award to plaintiffs of possession and use and occupancy, set at $775 per month, for the months of August, September and October 2005. In the instant action, plaintiffs seek to recover use and occupancy for the period beginning November 1, 2005, asserting that defendants did not move out until November 19, 2005. After a nonjury trial, the District Court awarded plaintiffs $1,600 for use and occupancy for November 2005, based on plaintiffs' unsupported claim that this reflected the amount of their carrying charges for that month.

In our view, the District Court's judgment did not render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]). The obligation of a tenant who holds over after the end of his lease to pay use and occupancy is imposed by law based on a theory of quantum meruit (Eighteen Assoc. v Nanjim Leasing Corp., 257 AD2d 559 [1999]; BGB Realty v Annunziata, 12 Misc 3d 136[A], 2006 NY Slip Op 51270[U] [App Term, 9th & 10th Jud Dists 2006]), and use and occupancy should generally be set at the fair rental value of the premises (see Cooper v [*2]Schube, 101 AD2d 737 [1984]; Sneddon v Greene, 17 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2007]; Phillips v Cohen, 2002 NY Slip Op 40235[U] [App Term, 9th & 10th Jud Dists 2002]). Such value can be established by proof of rentals for comparable premises (150-18-28 Union Turnpike Assoc. v Board of Mgrs. of Vil. Mall at Hillcrest Condominium, 12 Misc 3d 135[A], 2006 NY Slip Op 51248[U] [App Term, 2d & 11th Jud Dists 2006]; 595 Broadway Assoc. v Bikman, 2003 NY Slip Op 51254[U] [App Term, 1st Dept 2003]) or by proof of the rent paid under the expired lease (see Pentecost v Santorelli, 2003 NY Slip Op 51178[U] [App Term, 9th & 10th Jud Dists 2003]; 3 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 46:26 [4th ed]), but, contrary to the District Court's determination, use and occupancy cannot be set by reference to plaintiffs' carrying charges, i.e., their mortgage expenses and taxes, which in any event were not properly proven here. Since the prior holdover final judgment established that the fair value of use and occupancy was $775 per month, this is the rate at which use and occupancy should have been awarded.

Furthermore, contrary to the court's determination, the rule against apportionment which applies to rents does not apply to use and occupancy (Marron v Liebenow, NYLJ, June 22, 1994 [App Term, 9th & 10th Jud Dists 1994]; Elliot v Polny, 132 Misc 2d 236 [1986]; see also Hoppenstein v Street Beat Sportswear, NYLJ, Apr.
16, 1996 [App Term, 1st Dept]). Thus, defendants are liable for use and occupancy only for 19 days in November, or for 19/30 of $775, which is $490.87. We modify the judgment accordingly.

McCabe, J.P., Tanenbaum and Molia, JJ., concur.
Decision Date: March 12, 2008