Sylvia Garfinkel, Respondent, v. Dolphin Realty, Inc., et al., Appellants, 22 A.D.2d 785

Order, entered on August 17, 1964, directing the individual defendant to attorn to the receiver and to pay him the sum of $100 per month for each of the three lofts occupied by her, and further directing individual defendant to allow an inspection of the premises or, in default thereof, directing the individual defendant to pay $440 for use and occupation of the premises, unanimously modified on the law and on the facts, and matter remanded to Special Term for a hearing on the reasonable value for use and occupancy of the premises occupied by said defendant, unless the receiver stipulates to accept in lieu thereof the sum of $70 per month for each of the three lofts occupied by defendant and waives any extra sum for failure to allow an inspection of the premises, in which event the order is affirmed, without costs to either party.

No hearing was had on the application to fix rents. However, defendant admits that the occupant of a similar loft is currently paying $70 per month for his space. As no distinction in the space has been shown, this would be a prima facie showing of value sufficient to sustain an order. While defendant was disagreeable and failed to co-operate with the receiver, we find no justification to penalize her by increasing the charge for use and occupancy. Settle order on notice. Concur — Rabin, J. P., Valente, Stevens, Eager and Steuer, JJ.