313 West 57 Rest. Corp. v. 313 West 57th Associates

— Order, Supreme Court, New York County (Myriam J. Altman, J.), entered September 10, 1991, which granted defendant’s motion for summary judgment only to the extent of granting a money judgment against plaintiffs in the sum of $24,000 and directing counterclaim defendant to post an undertaking in the sum of $54,000, unanimously modified, on the law, to grant defendant judgment of possession against plaintiffs, and the order is otherwise affirmed, without costs.

Plaintiffs failed to pay use and occupancy (RPAPL 749 [3]), and accordingly, defendant is entitled to an order of possession (see, Calvert v Le Tam Realty Corp., 118 AD2d 426). Counterclaim defendant is not physically in possession but claims such right pursuant to a Surrender Agreement from plaintiff and the court properly ordered counterclaim defendant to post an undertaking. Concur — Carro, J. P., Milonas, Ellerin and Asch, JJ,