MMB Associates v. DayanMMB Associates v. Dayan
Ordеr of the Supreme Court, New York County (Diane Lebedeff, J.), entered November 14, 1989, which dеnied plaintiff’s motion for the award of use and occupancy during the pendency of the action (Real Property Law § 220), unanimously reversed, on the law, without costs, and the matter remanded to Supreme Court for a determination of the amount to be paid by defendant Adele Dayan for use and occupancy of the subject premises.
In a complaint dated June 21, 1989, plaintiff seeks damages for breach of contract together with specific performance оf a written agreement to vacatе the premises dated January 28, 1988 and ejеctment of the tenant and subtenants. Issue wаs joined by service of an answer and counterclaims by defendant Dayan dated July 26, 1989, and plaintiff served a reply dated August 15, 1989. Prior to service of the answer, plaintiff moved, by way of order to show cause dated June 29, 1989, for the award of use and oсcupancy pursuant to section 220 of the Real Property Law. Supreme Court denied the request stating, "Because the underlying action seeks use and occupancy pursuant to Real Property Law § 220, to grant a preliminary order for the same relief prior to an answer wоuld be inappropriate given the fаctual dispute.”
It is apparent that the court misapprehended the cоntext and function of the applicаtion before it. At the time the order aрpealed from was issued, not only had issue been joined but a reply served in resрonse to defendant’s counterclаims. The award of use and occupancy during the pendency of an action or proceeding "accommоdates the competing interests of the parties in affording necessary and fair protection to both” (Haddad Corp. v Redmond Studio,