Appeal from a judgment of the Justice Court of the Town of Carmel, Putnam County (Joseph J. Spofford, Jr., J.), entered September 30, 2013. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded landlords the sum of $22,320 on their claims for rent arrears and use and occupancy, and dismissed tenant's counterclaim for unjust enrichment in a holdover summary proceeding.

ORDERED that the judgment, insofar as appealed from, is modified by reducing the award in favor of landlords on their claims for rent arrears and use and occupancy to the principal sum of $11,000 and by awarding tenant the principal sum of $3,000 on her counterclaim for unjust enrichment, for a net judgment in favor of landlords in the principal sum of $8,000; as so modified, the judgment, insofar as appealed from, is affirmed, without costs.

Insofar as is relevant to this appeal, landlords commenced this holdover proceeding alleging that Elizabeth Light (tenant) had entered into possession of the subject premises as a month-to-month tenant and that she had held over after the termination of her tenancy. Landlords sought possession, rent arrears and accruing use and occupancy. Tenant interposed several counterclaims, including one for unjust enrichment. A final judgment of possession was entered pursuant to a stipulation and is not the subject of this appeal. After a trial on the issues of rent arrears and use and occupancy, the Justice Court awarded landlords $22,320, representing $3,200 in use and occupancy per month for February through June 2013, and arrears of $1,570 for August 2012, $1,720 for September 2012, $1,000 for October 2012 and $2,030 for November 2012, and implicitly dismissed tenant's counterclaims. Tenant appeals, arguing, among other things, that landlords failed to prove the reasonable value of use and occupancy and that she is entitled to a credit for payments she had made toward a purported option to purchase the subject property.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, [*2]bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

Tenant argues that landlords should not have been awarded any use and occupancy because they did not prove the reasonable value of use and occupancy of the subject property. However, use and occupancy may properly be assessed at the rent reserved in an expired lease (Pentecost v Santorelli, 2003 NY Slip Op 51178[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2003]). Here, while it is undisputed that the parties did not enter into a written lease, both parties agreed that tenant had made regular monthly payments of $2,200 for rent and additional monthly payments of $1,000 toward a purported option to purchase the property. Furthermore, at the start of the trial, landlords' attorney stated that landlords were seeking to recover the sum of $14,420, which was based upon a monthly rate of $2,200, and that landlords were not going to argue that rent was $3,200 per month. Under the circumstances, the record supports an assessment of use and occupancy based on a monthly rate of $2,200.

While the record does not support the Justice Court's award, which was calculated based upon rent and use and occupancy at a monthly rate of $3,200, it does support the Justice Court's findings that tenant was liable for use and occupancy for February 2013 through June 2013. Consequently, landlords have established their entitlement to recover $11,000 in use and occupancy, representing $2,200 per month for February through June of 2013. Regarding arrears, landlords have not established that tenant owed $1,000 as rent due for October 2012, as that balance was merely the difference between $3,200 and $2,200, and thus, we find that there were no arrears due for October 2012. Furthermore, the record does not support the Justice Court's finding that tenant owed the balance of the rent due for August 2012, September 2012 and November 2012. There was testimony that landlords were responsible for major repairs, and the record demonstrates that tenant deducted rent money for, among other things, repairs to the boiler.

The record also reflects that, in addition to monthly rent of $2,200, $10,500 was paid to landlords in furtherance of a purported option to buy the subject property, and, of that sum, tenant herself had made payments totaling $9,000 and a former co-tenant had paid the remainder. While the Justice Court found that the parties had acted in accordance with the terms of a lease and option that had been drawn up but never signed, the record does not support such a finding. Indeed, the unexecuted lease and option were not even presented at the trial for the court to consider. There was no testimony proffered as to the intent of either party with respect to these payments in the event that tenant did not ultimately purchase the subject property, and it is undisputed that tenant has not and will not exercise the option to purchase. To the extent that either party is arguing that there was an oral agreement between the parties that could fairly be called an "option contract," neither party testified as to any terms of the agreement. Thus, there is no basis for this court to conclude that there has been substantial performance of an oral contract (see General Obligations Law § 5-703 [4]), nor are there any terms for this court to enforce. In view of the foregoing, we find that landlords have been unjustly enriched by those payments.

However, Section 208 of the Uniform Justice Court Act provides that "[i]f a counterclaim for money only in excess of $3,000 is interposed, the court may entertain it to the extent of $3,000, but it shall be deemed waived as to the excess above $3,000." Consequently, this court is constrained to limit the award on tenant's counterclaim to the principal sum of $3,000 (see Lin Tien v Evans, 42 Misc 3d 129[A], 2013 NY Slip Op 52164[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).

Accordingly, the judgment, insofar as appealed from, is modified by reducing the award in favor of landlords on their claim for rent arrears and use and occupancy to the principal sum of $11,000 and by awarding tenant the principal sum of $3,000 on her counterclaim for unjust [*3]enrichment, for a net judgment in favor of landlords in the principal sum of $8,000.

Tolbert, J.P., Iannacci and Connolly, JJ., concur.