[*2]INTRODUCTION

These actions present the identical issue of a landlord's entitlement to a default judgment for "the fair value use and occupancy of the premises" when a tenant defaults in a summary eviction proceeding. In each action, the landlord, RH Apartments LP, brought a summary nonpayment proceeding against each named tenant seeking a judgment for unpaid rent and an immediate warrant of eviction. In each petition, the landlord also sought additional monetary damages for "the fair value use and occupancy of the premises."

No tenant answered or appeared in any of these actions. For that reason, the Court, in each case, awarded the landlord an immediate warrant of eviction and a default judgment in the amount of the allegedly unpaid rent, late fees, and attorney's fees. However, for the reasons discussed below, the Court declined to award additional damages against each tenant for "fair value use and occupancy of the premises."

PROCEDURAL HISTORY

All seven petitions for summary relief under NY Real Property Actions and Proceedings Law, Article 7 were verified by the landlord's agent on August 25, 2011. All seven were filed with the Court on August 31, 2011.

Each petition alleged that the tenant had signed a written lease with landlord for the rental of an apartment. Each petition alleged that the tenant owed back rent and late fees. While the amounts allegedly owed by these tenants varied, each was alleged to owe, in addition to any other amounts, rent and late fees for August 2011. Each tenant was personally served with the petition and a notice directing the tenant to appear in Court for a hearing on September 14, 2011.

The landlord appeared by counsel in each action. No tenant in any of these actions answered the petition or appeared in Court on September 14, 2011. The documentation before the Court in each case satisfied all jurisdictional requirements. For that reason, on September 14, 2011, the Court in each case granted the landlord's request for an immediate warrant of eviction and a default judgment for the back rent allegedly owed through August 31, 2011, late fees, and attorney's fees.^[FN1]

In addition to the damages awarded by the Court, each the petition also requested damages for "fair value use and occupancy of the premises." The landlord's attorney asserted that in addition to each tenant's allegedly unpaid back rent, the landlord was entitled to damages for the use and occupancy of the premises from September 1, 2011 through the September 14, 2011 hearing date. At the hearing, however, the landlord failed to submit any supplemental documentation or testimony showing that any tenant remained in possession from September 1, 2011 through September 14, 2011.

LEGAL DISCUSSION

Petitioner accurately observes that under NY Real Property Actions and Proceedings Law §749(3), a landlord who brings a special proceeding for nonpayment of rent:

may recover by action any sum of money which was payable at the time when the special [*3]proceeding was commenced and the reasonable value of the use and occupation to the time when the warrant was issued, for any period of time with respect to which the agreement does not make any provision for payment of rent.

The special proceedings in these actions were commenced by their filing on August 31, 2011. In each case, the landlord was entitled to recover, and was awarded by the Court, all "sum[s] of money which [were] payable at the time when the special proceeding was commenced," including rent allegedly owed through August 31, 2011.

The statute, however, provides merely that a landlord may obtain additional damages for use and occupancy; it does not state that the Court must award additional damages for use and occupancy absent any supporting evidence of entitlement.

None of the petitions in these actions alleged that the tenant failed to pay rent for September 2011 that was due on September 1, 2011. Plainly, no such allegation could have been included in a petition that was filed on August 31, 2011, prior to the date on which September 2011 rent would have been due.

At the September 14, 2011 hearings, the landlord appeared only by its attorney. No person having personal knowledge of any tenant's status as of September 14, 2011 appeared in Court or submitted any supplemental affidavits. Nevertheless, the landlord's attorney maintained that the landlord was entitled to a default monetary judgment that included the value of each tenant's use and occupancy from September 1 through September 14, 2011.

Notwithstanding each petition's demand for use and occupancy damages, a petition's barebones claim for relief does not, in itself, automatically entitle petitioner to the relief demanded. To the contrary, specific factual information substantiating the claim for the requested remedy must be included in the pleadings. See Woodson v. Mendon Leasing Corp., 100 NY2d 62, 70-71 (2003). Tenants' defaults in these actions does not alter petitioner's obligation in this regard. See McGee v. Dunn, 75 AD3d 624 (2nd Dep't 2010); Gagnen v. Kipany Prods., 289 AD2d 844, 845-46 (3rd Dep't 2001); Dyno v. Rose, 260 AD2d 694, 698 (3rd Dep't), app. dismissed 93 NY2d 998, lv. denied 94 NY2d 753 (1999)(while a defendant's "default does constitute an admission of all of the factual allegations in the complaint . . . , it does not follow that the trial court has a mandatory, ministerial duty to grant a motion for a default judgment upon every properly verified complaint — however deficient — upon which there has been a default.")

Further, any assertions by the landlord's attorney that the tenants continued to occupy the premises without paying rent would have been insufficient to sustain the landlord's claim for additional relief. As numerous courts have emphasized, an attorney's hearsay assertions about the facts in a case have no evidentiary or probative value. See Baity v. General Elec. Co., 86 AD3d 948, 950 (4th Dep't 2011); Marine Midland Bank v. Hall, 74 AD2d 729 (4th Dep't 1980). See also Brusco v. Braun, 199 AD2d 27, 32 (1st Dep't 1993), aff'd 84 NY2d 674 (1994)(although a petition verified by an attorney may be filed in a non-payment or holdover summary proceeding, an attorney's hearsay affidavit "is of no probative value for purposes of summary determination.")

As discussed above, the landlord in these actions failed to submit any factual evidence concerning any tenant's continued use and occupancy of the premises after August 31, 2011. [*4]Accordingly, the landlord's claim for the value of continued use and occupancy from each tenant cannot be sustained.

CONCLUSION

For the reasons discussed above, the landlord's claim for the value of continued use and occupancy from the tenant in each action is denied.

SO ORDERED.

January 6, 2012__________________________________

Hon. Ellen M. Yacknin