On August 11, 2021, the Second Department issued a decision in Tavor v. Lane Towers Owners, Inc., 2021 NY Slip Op. 04676, holding that use and occupancy is an equitable remedy, explaining:
[T]he obligation to pay for use and occupancy does not arise from an underlying contract between the landlord and the occupant. 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.
Here, considering the plaintiff’s continued use and occupancy of the apartments and the work performed by Lane Towers, the Supreme Court providently exercised its discretion in directing the plaintiff to pay for his use and occupancy of the apartments during the pendency of this action. Since this is a pendente lite award, the details of the financial equities can be remedied by means of a speedy trial of the action.
(Internal quotations and citations omitted).