conceded that tenants had last paid rent on April 22, 2014 and did not rebut tenant's
testimony and documentary evidence—including a lease with a commencement
date of March 22, 2012 and a stipulation from a prior proceeding in which it had been
agreed that rent had been paid in full through March 21, 2014—showing that rent
was payable from the 22nd day of the month. As the lease terminated on June 30, 2014,
the District Court's finding that tenants owed the full amount of the monthly rent for the
months of May and June 2014 was not correct. Rather, tenants owed $5,600 for May 22,
2014 through June 21, 2014, and $1,680 (which equals $5,600 per month prorated for
nine days) for June 22, 2014 through June 30, 2014.
After the tenancy ended on June 30, 2014, landlord was entitled, pursuant to an
amendment to the lease, to use and occupancy at the rate of $6,000 per month through
the date of tenants' vacatur, August 4, 2014. The District Court erred in awarding use and
occupancy through August 31, 2014, as tenants are liable for use and occupancy only for
the actual period that they remained in possession (see Peat v Doralis, 22 Misc 3d
142[A], 2009 NY Slip Op 50457[U] [App Term, 2d Dept, 9th & 10th Jud Dists
2009]; Wahl v Warren, 19
Misc 3d 130[A], 2008 NY Slip Op 50537[U] [App Term, 2d Dept, 9th & 10th
Jud Dists 2008]). Thus, tenants owed $6,000 for July 2014 and $774.19 for four days in
August 2014.
In reviewing a determination made after a nonjury trial, the power of this court is as
broad as that of the trial court, and this court may render the judgment it finds warranted
by the facts, bearing in mind that the determination of a trier of fact as to issues of
credibility is given substantial deference, as a trial court's opportunity to observe and