Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s order to show cause seeking a stay pending appeal and an undertaking pursuant to CPLR §5519(a)(6) or §5519(c) and petitioner’s cross-motion seeking the court set use and occupancy at ‘fair market’ for purposes of an undertaking and grant petitioner a money judgment for fair market use and occupancy retroactive to the Notice of Termination, among other relief.Papers NumberedRespondents’ Order to Show Cause. 1Petitioner’s Cross-Motion. 2DECISION AND ORDER Upon the foregoing cited papers, the Decision/Order of this Court on these motions is as follows: Motions granted to the extent of a setting a hearing to determine market rate for subject premises and fixing an undertaking.Petitioner commenced this licensee holdover proceeding seeking to regain possession of the premises, a rent-controlled apartment, pleading respondent-occupant was the licensee of the deceased tenant-of-record and that license terminated with the tenant’s death. In response, respondent claimed he had an interdependent, familial relationship with the decedent entitling him to succession rights. After trial, the petitioner was awarded a judgment of possession. The court held that the relationship between respondent and the deceased tenant did not meet the standard necessary to entitle succession. Respondent has appealed that decision and now seeks a stay pending appeal pursuant to either CPLR §5519(a)(6) or (c), and asks the court to set an undertaking. Respondent argues that, for purposes of the undertaking, use and occupancy should be set at the last legal regulated rent of $114 per month.Petitioner cross-moves seeking a hearing to set use and occupancy at the “fair market” value of the premises. In addition, petitioner seeks a money judgment retroactive to the Notice of Termination set at the difference between use and occupancy paid and the fair market use and occupancy to be determined at the hearing. Both parties admit that respondent is current on the post-petition use and occupancy at $114 per month.In the rent controlled context, such as this, vacancy permits the petitioner to charge the next tenant “a rent negotiated between them, which is subject to a ‘Fair Market Rent Appeal’.” If that negotiated rent is in excess of the high rent threshold, the apartment becomes deregulated. DHCR Fact Sheet #6. None of the cases cited by respondent in support of his position deal with a rent controlled apartment. In the one case clearly involving a rent regulated apartment, it involved a rent stabilized tenant that had already cured the breach. Ansonia Assoc v. Bozza, 186 Misc 2d 845 (AT 1st Dep’t 2000). Where the premises is made exempt by the termination of the subject lease, courts have permitted calculation of use and occupancy at fair market. See e.g. Rose Assoc v. Johnson, 247 AD2d 222 (1st Dep’t 1998).The purpose of an undertaking, however, is to prevent the non-moving party from suffering further loss while awaiting the result of appeal. See, e.g. Andrada Owners Corp v. DiGrazia, 38 Misc. 3d 1219(A)(Civ Ct NY Cty 2013). The court should avoid considering speculative claims for damages. Union Theological Seminary v. Harris, 1 Misc3d 909(A) (Civ Ct NY Cty 2003). Thus, the apartment will be considered “as is.” The court will not speculate as the value of a renovated apartment prior to completion of such renovations.The court declines to award fair market use and occupancy back to the Notice of Termination, as requested. To do so retroactively would significantly prejudice respondent whose claim was clearly merited, if ultimately unsuccessful. There was need for a trial and both sides agree that respondent co-resided with the tenant-of-record for a for a significant period of time; the dispute centers on the nature of their relationship. As both sides agree that use and occupancy at the regulated rate is fully paid and current, no money judgment will now issue.Therefore, petitioner’s motion is granted to the extent of setting a hearing. Respondent’s motion is held in abeyance pending the determination of the proper amount of the undertaking and proof it can be immediately posted. All stays remain in effect until a determination is made. Prior to the commencement of the hearing, the court will inquire as to the last offer and counter-offer between the parties regarding a monthly rate, considering the apartment on an ‘as is’ basis. Parties shall report to Part F, Room 830 at 2:30 pm on August 23, 2018 for a hearing.This is the decision and order of the Court, copies of which are being mailed to the parties.Dated: New York, NYJuly 16, 2018
