Immerblum v. Grefe

—Order, Appellate Term of the Supreme Court, First Department (Freedman and Davis, JJ.; McCooe, J. P., dissenting), entered January 10, 1997, which affirmed the order of the Civil Court, New York County (Bernard Fuchs, J.), entered December 21, 1995, awarding plaintiff use and occupancy and attorneys’ fees in an amount to be determined at inquest, and dismissing defendants’ counterclaim for illegal rent overcharges, treble damages and attorneys’ fees, unanimously affirmed, without costs.

Defendant sublessees’ counterclaim for rent overcharge is not reviewable by reason of law of the case, namely, Appellate Term’s order entered March 4, 1987 directing defendants to *282pursue their overcharge claim before the Division of Housing and Community Renewal, which defendants did not do, and this Court’s denial of defendants’ motion for leave to appeal to this Court (see, Glynwill Invs. v Shearson Lehman Hutton, 216 AD2d 78). Defendants are liable to plaintiff for use and occupancy for the 28 months beyond the expiration of the sublease that they remained in possession of plaintiffs apartment without his permission (see, C & N Camera & Elees, v Farmore Realty, 178 AD2d 310; 1133 Bldg. Corp. v Ketchum Communications, 224 AD2d 336, Iv dismissed 88 NY2d 963, Iv denied 89 NY2d 816), and also for attorneys’ fees, since this term of the lease continued into the holdover period (see, Arol Dev. Corp. v Goodie Brand Packing Corp., 83 Misc 2d 477, 479, affd 84 Misc 2d 493, 495).