On December 8, 2025, Justice Patel of the New York County Commercial Division issued a decision in Ark Rests. Corp. v. Bryant Park Corp., 2025 NY Slip Op. 51921(U), holding that use and occupancy and unjust enrichment claims were duplicative, explaining:
To establish a claim for unjust enrichment, a plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered. The essential inquiry is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. An action to recover for unjust enrichment sounds in restitution or quasi-contract. The claim rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another.
For the reasons set forth below, the Court finds that the unjust enrichment counterclaim is both duplicative of the use and occupancy counterclaims and precluded by the Leases, and is therefore dismissed with prejudice. Accordingly, the Court declines to reach Counterclaim-Defendants’ remaining arguments.
In principle, use and occupancy claims address the same concern as unjust enrichment claims, but in the specific context of possession of real property: the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another. Thus, in the absence of a valid lease, the tenant must remit payment for the use and occupancy of the space based on the premises’ fair-market value. Such payment is not rent, but a means to prevent unjust enrichment to the occupant for its holding over. Both causes of action sound in restitution.
Courts addressing claims for use and occupancy construe such payments as restitution for unjust enrichment. In effect, use and occupancy constitutes the measure of damages for unjust [*6]enrichment concerning possession of real property.
To be sure, Counterclaim-Plaintiff also seeks disgorgement of profits. However, plaintiffs are not entitled to disgorgement of profits based on an unjust enrichment claim, as these damages would compensate plaintiffs beyond their losses. Rather, the usual and customary damages in circumstances concerning the ejectment of a holdover tenant entail removal of the tenant and] recovery of use and occupation and incidental damages.
In sum, the same language—i.e., the same allegations and the same theory of damages—forms the basis of both the unjust enrichment and use and occupancy counterclaims. The unjust enrichment counterclaim is therefore duplicative of the use and occupancy counterclaims and must be dismissed.
(Internal quotations and citations omitted).