
    43rd Street Deli, Inc., Appellant, v Paramount Leasehold, L.P., Respondent.
    [967 NYS2d 61]
   Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 9, 2012, which granted defendant’s motion seeking use and occupancy to the extent of setting the matter down for a hearing before a referee to hear and determine the amount owed by plaintiff for monthly use and occupancy pending the outcome of this action, unanimously affirmed, without costs.

A court has broad discretion in awarding use and occupancy pendente lite (see Alphonse Hotel Corp. v 76 Corp., 273 AD2d 124 [1st Dept 2000]). Although the court may look to the amount of rent paid under a prior lease between the parties in setting use and occupancy (see Kuo Po Trading Co. v Tsung Tsin Assn., 273 AD2d 111 [1st Dept 2000]), prior rent is only probative, not dispositive, on the issue (see Mushlam, Inc. v Nazor, 80 AD3d 471, 472 [1st Dept 2011]). Moreover, the court may refer the issue to a referee.

Here, under the lease in question, a new rent value is set when a tenant exercises its right of renewal. However, that right is only available to a tenant who is not in default. Since this suit is, in part, based upon plaintiff tenant’s alleged default, and defendant landlord alleges that the lease has lapsed, making plaintiff a holdover tenant, it would be premature to find that the rent under the lease is the correct pendente lite payment (compare New York Physicians LLP v Ironwood Realty Corp., 103 AD3d 410 [1st Dept 2013]).

To the extent that plaintiff is ultimately successful at trial, it may be provided with a refund or rent credit (see Morris Hgts. Health Ctr., Inc. v DellaPietra, 38 AD3d 261 [1st Dept 2007], lv dismissed 9 NY3d 887 [2007]). Concur — Tom, J.P., Friedman, Freedman and Feinman, JJ.  