Upon reading Plaintiff's Motion for Default Judgment ("Motion"), submitted on default, together with all supporting documents, the Motion is decided as follows.

On July 17, 2023, Plaintiff commenced the instant action against Defendants seeking money damages in the amount of $15,375 for breach of a lease agreement, $1,025 for use and occupancy and $500 for reasonable attorneys' fees, together with costs and disbursements. On September 10, 2024, Plaintiff filed the Motion, pursuant to CPLR 3215, seeking a default judgment in the amount of $16,400 plus interest from December 1, 2020, and costs and disbursements. On November 14, 2024, Plaintiff's Motion was submitted on default due to Defendants' failure to appear.

Plaintiff is the owner and landlord of the premises known as and located at 321 Edgecombe Avenue, Apt. 4H, New York, NY 10031 ("Subject Premises"), and Defendants were the tenants of the Subject Premises, pursuant to a lease agreement with Plaintiff ("Lease"). The term of the Lease was for a period of two years, which began on March 1, 2020 and expired [*2]on February 28, 2022. The Lease dictated that Defendants were obligated to pay monthly rent in the amount of $1,025 for the duration of the Lease.

Plaintiff alleged that Defendants, in breach of the Lease, failed to remit rent payments for the months of December, 2020 through and including February 2022 and as such were liable to recover rent payment in the aggregate amount of $15,375, plus interest from December 1, 2020. Plaintiff also alleged that Defendants remained in possession of the Subject Premises after the term of the Lease expired on February 28, 2022, and vacated the Subject Premises on April 30, 2022. As such, Plaintiff argued that Defendants were liable to payment of $1,025 plus interest from March 1, 2022 for their continued use and occupancy of the Subject Premises. Thus, Plaintiff argued that Defendants owed a total amount of $16,400 for their non-payment of rent and use and occupancy, plus interest from December 1, 2020.

Pursuant to CPLR 3215, a plaintiff may seek a default judgment against a defendant who fails to appear or answer (see U.S. Bank, N.A. v Razon, 115 AD3d 739, 740, 981 NYS2d 571 [2014]). A plaintiff moving for a default judgment against a defendant must submit a proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defaulting defendant's failure to answer or appear (see CPLR 3215[f]; Bigio v. Gooding, 213 AD3d 480 [1st Dept 2023]). To demonstrate "facts constituting the claim," the movant need only proffer proof sufficient "to enable a court to determine that a viable cause of action exists" (see Bigio, 213 AD3d 480 [1st Dept 2023] quoting Woodson v Mendon Leasing Corp., 100 NY2d 62, 71, 790 N.E.2d 1156, 760 N.Y.S.2d 727 [2003]). The movant may do so either by submission of an affidavit of merit or by verified complaint, if one has been properly served (see CPLR 3215[f]; Woodson, 100 NY2d 62, 71, 790 N.E.2d 1156, 760 N.Y.S.2d 727 [2003]; Voelker v Bodum USA, Inc., 149 AD3d 587, 587, 50 N.Y.S.3d 283 [1st Dept 2017]).

In support of the Motion, Plaintiff submitted an Affirmation in Support of Plaintiff's managing agent, Greisman (Exhibit 1); a copy of the deed (Exhibit 2); a copy of the Lease (Exhibit 3); a copy of the rent ledger (Exhibit 4); a copy of partially redacted Department of Motor Vehicles records for Defendants dated April 10, 2023, confirming Defendants' last known place of residence (Exhibit 5); a copy of the Summons and Complaint (Exhibit 6); a copy of the Affidavits of Service of the Summons and Complaint (Exhibit 7); a copy of Affirmations of Mailing of Additional Notice of Suit (Exhibit 8); Affirmations of Investigator and Affidavits from the Department of Defense Manpower Data Center (Military Law § 309[1]) (Exhibit 9).

Plaintiff has submitted evidence establishing a prima facie case for breach of contract as it showed the existence of a Lease, Plaintiff's performance under the Lease, Defendants' breach of the Lease and the resulting damages (see generally Harris v Seward Park Housing Corp., 79 AD3d 425, 913 N.Y.S.2d 161 [1st Dept 2010]).

Plaintiff presented an Affidavit of Greisman, a managing agent of Plaintiff, a person with competent knowledge of the instant action, confirming the amount of overdue monthly rent at $15,375 for the months of December, 2020 through and including February, 2022 (Exhibit 1). The rent ledgers confirmed the amount of overdue rent stated in the Affidavit (Exhibit 4). The Affidavit also stated that the rent ledger was made in the regular course of business, that it was the regular course of such business to maintain rent ledgers, and that the rent ledger was a true and accurate representation of the accrued rent. As the rent ledger was made pursuant to "an established procedure for the routine, habitual, systematic making of records that would qualify [*3]them as trustworthy accounts" and were "regularly relied on" by Plaintiff, the Court finds Plaintiff to have established a sufficient foundation for the rent ledger as business records (see People v Kennedy, 68 NY2d 569, 579-580, 503 N.E.2d 501, 510 N.Y.S.2d 853 [1986]; see also CPLR 4518[a]).

In addition, other requirements of CPLR 3215(f) have been met. Plaintiff established a presumption of service of the Summons and Complaint based upon the process server's Affidavit pursuant to CPLR 308 (Exhibit 7), and additional service pursuant to CPLR 3215(g) (Exhibit 8). Plaintiff presented the required documents with proof that the defendants were not in military service (Military Law § 309[1]) (Exhibit 9). Defendant failed to appear to argue against nor submit any papers in opposition to the instant motion. Having failed to answer, the defendant is "deemed to have admitted all factual allegations in the complaint and all reasonable inferences that flow from them" (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]).

Here, Plaintiff has established its prima facie case for money damage in the amount of $15,375.

RPL 220 states, in pertinent part: "[t]he landlord may recover a reasonable compensation for the use and occupation of real property, by any person, under an agreement, not made by deed; and a parol lease or other agreement may be used as evidence of the amount to which he is entitled" (RPL 220). "The obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant" (see Carlyle, LLC v Beekman Garage LLC, 133 AD3d 510, 511, 19 N.Y.S. 3d 520 [1st Dept 2015] quoting Eighteen Assocs. v Nanjim Leasing Corp., 257 AD2d 559, 559, 683 N.Y.S.2d 291 [2d Dept 1999]). "Rather, an occupant's duty to pay the landlord for its use and occupancy of the premises is predicated upon the theory of quantum meruit, and is imposed by law for the purpose of bringing about justice without reference to the intention of the parties" (id.). The reasonable value of use and occupancy is the fair market value of the premises after the expiration of the lease, and it is the landlord, not tenant, who has the burden of proving the reasonable value of use and occupancy (see Mushlam, Inc. v Nazor, 80 AD3d 471, 472, 916 N.Y.S. 2d 25 [1st Dept 2011]; see also Cooper v Schube, 101 AD2d 737, 475 NYS2d 52 [1984]). "In order to determine the reasonable value of the property, the court may only fix a figure after having received competent evidence of the value of the premises" (see Zombek v Williams, 124 AD2d 524, 527, 508 N.Y.S.2d 439 [1st Dept 1986]). "In determining the reasonable value of use and occupancy, the rent reserved under the lease, while not necessarily conclusive, is probative" (see Mushlam, Inc., 80 AD3d 471, 472, 916 N.Y.S. 2d 25 [1st Dept 2011]). Here, Plaintiff's verified complaint and the Affidavit of Greisman asserted that Defendant remained in possession of the Subject Premises until April 30, 2022, beyond the expiration of the Lease in February 28, 2022 without authorization, and set forth "enough facts to enable [the] court to determine that a viable cause of action exists" (see Bigio, 213 AD3d 480 [1st Dept 2023]; Woodson, 100 NY2d 62, 71, 790 N.E.2d 1156, 760 N.Y.S.2d 727 [2003]; CPLR 3215[f]). Reasonable use and occupancy included a monthly obligation to pay $1,025 as "the reasonable value of the premises". Plaintiff established through providing a copy of the Lease, the rent ledger, Plaintiff's verified complaint and affidavit of merit that Defendant owed this monthly obligation pursuant to the terms of the Lease, and that Defendants were still in possession of the Subject Premises beyond the expiration of the Lease. Here, Plaintiff is entitled to recover money damages in the amount of $1,025 per month for "reasonable use and occupancy" beginning March 1, 2022 due to [*4]Defendants' continued use of the Subject Premises.

Accordingly, it is

ORDERED that Plaintiff's Motion is GRANTED on default, and judgment is entered for Plaintiff against Defendant in the amount of $16,400, plus costs and disbursements.

This constitutes the DECISION and ORDER of this Court.