Tibta v. 156 E 21 LLC, 2025 NY Slip Op 25064 (2025)

Citation: Tibta v. 156 E 21 LLC, 2025 NY Slip Op 25064 (2025)
Parent Document: Tibta v. 156 E 21 LLC, 2025 NY Slip Op 25064 (2025)
Jurisdiction: New York (state)
Effective Date: 2025-03-18
Original Source: https://www.courtlistener.com/opinion/10360937/tibta-v-156-e-21-llc/ ↗

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Noting that CPLR 5519 (a) (6) contemplates not only an undertaking to prevent "waste" but also an undertaking for "use and occupancy," the Utsey court turned to the task of setting a monetary undertaking pending appeal. The alleged squatters argued that use and occupancy should not be based upon the benefit they were obtaining from living in the building, but, rather, on the actual loss to the city. However, as here, "no such loss [had] been proved or even alleged." (Id.) The court rejected the squatters' position, reasoning that to decline to set an undertaking would "place a premium on trespassing, because it makes the position of the trespasser more favorable than that of one lawfully contracting." (Id., citing De Camp v Bullard, 159 NY 450, 454 [1899].) Accordingly, the Utsey court set the undertaking at the fair value of use and occupancy of the units in which the respondents were squatting, i.e. the value of the benefit derived by remaining in the property.[FN7]

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