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10E53 OWNER LLC v. BRUDERMAN ASSET MANAGEMENT

Index No. 654450/20. Appeal No. 15374. Case No. 2021-01723.

202 A.D.3d 609 (2022)

159 N.Y.S.3d 849

2022 NY Slip Op 01228

10E53 Owner LLC, Respondent, v. Bruderman Asset Management, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided February 24, 2022.

Attorney(s) appearing for the Case

The Law Firm of Elias C. Schwartz, PLLC, Great Neck ( Marc J. Monte of counsel), for appellant.

Stempel Bennett Claman & Hochberg, P.C., New York ( Edmond P. O'Brien of counsel), for respondent.

Concur—Acosta, P.J., Kapnick, Friedman, Singh, Pitt, JJ.

The court providently exercised its discretion in awarding plaintiff pendente lite use and occupancy, as it would have been "manifestly unfair" for defendant "to remain in possession of the subject premises without paying for [its] use" (MMB Assoc. v Dayan, 169 A.D.2d 422, 422 [1st Dept 1991]).

Defendant's argument that the court's award of use and occupancy at the 200% holdover rate specified in the parties' lease was punitive...

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