Opinion
February 9, 1987
Appeal from the Supreme Court, Queens County (Leviss, J.).
Ordered that the judgment and the order are affirmed, with costs, for reasons stated by Justice Leviss at Special Term.
We would add, however, two points. Firstly, under the facts and circumstances of this case, the plaintiffs did not act in such manner, nor were the defendants prejudiced, so that specific performance is barred by laches (see, Robbins v. Clock, 203 N.Y. 603, affg 131 App. Div. 917, affg 59 Misc. 289; 5 Warren's Weed, New York Real Property, Specific Performance, § 7.09).
Secondly, the defendants' counterclaim for rents and profits was properly dismissed, since "[i]t is well settled that the legal owner of real property is not entitled to an award for use and occupancy from a contract vendee in possession unless there also exists a landlord-tenant relationship between the parties" (Barbarita v. Shilling, 111 A.D.2d 200, 201; see, 14 Second Ave. Realty Corp. v. Steven Corp., 16 A.D.2d 751, affd 12 N.Y.2d 919), and no landlord-tenant relationship existed between the parties herein. Mollen, P.J., Thompson, Brown and Niehoff, JJ., concur.