
    35 Lispenard Partners, Inc., Appellant, v 35 Smoke & Grill, LLC, et al., Respondents.
    [901 NYS2d 841]
   Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 2, 2009, which denied plaintiff’s motion seeking a money judgment, a judgment of possession and the striking of defendants’ answer, and granted the cross motion of defendants for a stay of the action pending the determination of a proceeding in Surrogate’s Court, New York County, unanimously modified, on the law, to grant that part of plaintiffs motion seeking past use and occupancy in the amount of $153,000 in accordance with a prior order, same court and Justice, directing the payment of use and occupancy pendente lite, and to vacate that part of the stay affecting the payment of continued use and occupancy, and otherwise affirmed, without costs.

Defendants have no right to occupy the subject premises rent-free (see Levinson v 390 W. End Assoc., L.L.C., 22 AD3d 397, 403 [2005]), and thus, pursuant to the motion court’s prior order, defendants are directed to pay past use and occupancy covering the period of April 2004 to May 2007 at the rate of $3,000 per month ($114,000), which was the amount reserved for rent in the lease covering said period. Defendants are also to pay use and occupancy at the rate of $7,800 for the period between June 2007 through October 2007 ($39,000), which was the amount ultimately determined to be the fair market rent for the premises.

The stay with respect to the hearing on the capacity of plaintiff to sue remains in effect pending the resolution of the Surrogate’s Court proceeding involving the will of a deceased partner of plaintiff, since it may be determinative of plaintiffs right to maintain the instant action. Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse and Manzanet-Daniels, JJ.  