Immerblum v. Grefe

• Decision Date: 24 March 1998
• Citation: 248 A.D.2d 281,670 N.Y.S.2d 75
• Parties: 1998 N.Y. Slip Op. 2686 Steven IMMERBLUM, Plaintiff-Respondent, v. Edward GREFE, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 75

670 N.Y.S.2d 75

1998 N.Y. Slip Op. 2686

Steven IMMERBLUM, Plaintiff-Respondent, v. Edward GREFE, et al., Defendants-Appellants.

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

March 24, 1998.

Mark S. Friedlander, for plaintiff-respondent.

Timothy O'Donnell, for defendants-appellants.

Order, Appellate Term of the Supreme Court, First Department, entered January 10, 1997, which affirmed the order of the Civil Court, New York County (Bernard Fuchs, J.), entered December 21, 1995, awarding plaintiff use and occupancy and attorneys' fees in an amount to be determined at inquest, and dismissing defendants' counterclaim for illegal rent overcharges, treble damages and attorneys' fees, unanimously affirmed, without costs.

Defendants sublessees' counterclaim for rent overcharge is not reviewable by reason of law of the case, namely, Appellate Term's order entered March 4, 1987 directing defendants to pursue their overcharge claim before the Division of Housing and Community Renewal, which defendants did not do, and this Court's denial of defendants' motion for leave to appeal to this Court (see, Glynwill Investments v. Shearson Lehman Hutton, 216 A.D.2d 78, 628 N.Y.S.2d 71). Defendants are liable to plaintiff for use and occupancy for the 28 months beyond the expiration of the sublease that they remained in possession of plaintiff's apartment without his permission (see, C & N Camera & Elecs. v. Farmore Realty, 178 A.D.2d 310, 577 N.Y.S.2d 613; 1133 Bldg. Corp. v. Ketchum Communications, 224 A.D.2d 336, 638 N.Y.S.2d 450, lv. dismissed 88 N.Y.2d 963, 647 N.Y.S.2d 716, 670 N.E.2d 1348, lv. denied 89 N.Y.2d 816, 659 N.Y.S.2d 857, 681 N.E.2d 1304), and also for attorneys' fees, since this term of the lease continued into the holdover period (see, Arol Dev. Corp. v. Goodie Brand Packing Corp., 83 Misc.2d 477, 479, 372 N.Y.S.2d 324, aff'd 84 Misc.2d 493, 495, 378 N.Y.S.2d 231).

SULLIVAN, J.P., and MILONAS, ROSENBERGER and TOM, JJ., concur.