58 EAST 130TH STREET LLC v. MOUTON (2009)

Petitioner commenced the instant nonpayment proceeding against Respondent and moves for an order:  (a) dismissing and/or severing Respondent's affirmative defenses and/or counterclaims;  (b) striking Respondent's Jury Demand;  (c) quashing Respondent's discovery demands;  and (d) granting any other and further relief that the Court deems as just and proper.   Respondent cross-moves for an order dismissing the Petition because:  (a) the subject building lacks a Certificate of Occupancy;  (b) Petitioner did not wait the requisite thirty days after allegedly serving the Three-Day Notice;  (c) the alleged Three-Day Notice is facially invalid;  (d) Petitioner failed to properly serve its Notice of Petition and Petition.   Additionally, Respondent cross-moves (e) for an order denying Petitioner's motion in its entirety, and (f) for such other and further relief as the Court deems as just and proper.   Based on Petitioner's Notice of Motion (1);  Respondent's Notice of Cross-Motion (2);  Petitioner's Affirmation in Opposition to Respondent's Motion and in Further Support of Petitioner's Motion (3);  and Respondent's Reply Affidavit (4), the Court decides as follows.

DECISION

Respondent is a tenant in Petitioner's multiple dwelling premises.   A Department of Buildings (“DOB”) inspection revealed a violation invalidating the building's Certificate of Occupancy (“C/O”) (Notice of Cross-Motion, exhibit D, “ECB Violation Number 34758165Z”).  Multiple Dwelling Law § 301 states, in relevant part, that no multiple dwelling shall be occupied unless the DOB has issued a C/O for the premises.   If an owner fails to comply with § 301, MDL § 302(1)(b) bars the owner from collecting rent and from commencing a nonpayment proceeding to collect rent for the period in which the C/O is invalid.

Neither the Court nor counsel has been able to locate a case directly on point.   The majority of cases involve either a legal two-family house being used as an unlawful de facto multiple dwelling (see, e.g., Jalinos v. Ramkalup, 255 A.D.2d 293, 679 N.Y.S.2d 419 [2d Dept.1998] ) or a loft situation where the interim multiple dwelling provisions of MDL § 284 apply (see Clinton Hill Lofts 1, LLC v. Reid, N.Y.L.J., Aug. 6, 2003, at 23, col. 1 [Civ. Ct., Kings County] ).  MDL § 284 is inapplicable in the instant case since, as both parties concede, the subject premises is a residential multiple dwelling (see 40 Clinton St. Assoc. v. Dolgin, 126 Misc.2d 373, 481 N.Y.S.2d 960 [Civ. Ct., N.Y. County 1984] ).

 The instant case is most analogous to cases involving premises with C/Os that are valid only for portions of the building.   In these cases, First Department courts generally apply MDL § 302 rent forfeiture provisions when three conditions are met:  (1) the C/O violation renders tenant's residential occupancy unlawful (see Shoretown Management v. Kahill, N.Y.L.J., Oct. 28, 1993, at 27, col. 3 [App. Term, 1st Dept.];  50 E. 78th Corp. v. Jire, N.Y.L.J., Dec. 21, 1991, at 25, col. 1 [App. Term, 1st Dept.] );  (2) the arrears sought are only for illegal units (see Hart-Zafra v. Singh, 16 A.D.3d 143, 790 N.Y.S.2d 129 [1st Dept.2005];  Hornfeld v. Gaare, 130 A.D.2d 398, 515 N.Y.S.2d 258 [1st Dept.1987];  Brownstone School & Daycare Center v. Lenihan, N.Y.L.J., May 5, 1992, at 23, col. 3 [Civ. Ct., N.Y. County];  Jalinos v. Ramkalup, 255 A.D.2d 293, 679 N.Y.S.2d 419 [1998];  Chan v. Kormendi, 118 Misc.2d 1026, 462 N.Y.S.2d 943 [Civ. Ct., Queens County 1983] );  and (3) the tenant is not complicit in the existence and maintenance of the illegal apartment (see Lipkis v. Pikus, 96 Misc.2d 581, 409 N.Y.S.2d 598 [Civ. Ct., N.Y. County 1978], mod. per curiam, 99 Misc.2d 518, 416 N.Y.S.2d 694 [App. Term, 1st Dept.], affd. mem., 72 A.D.2d 697, 421 N.Y.S.2d 825 [1st Dept.1979], lv. dismissed, 51 N.Y.2d 874, 433 N.Y.S.2d 1019, 414 N.E.2d 399 [1980];  Zafra v. Sawhuck, N.Y.L.J., Jan. 9, 1995, at 27, col. 2 [App. Term, 1st Dept.] ).

 In the instant case, Petitioner erroneously argues that the C/O violation pertains only to the cellar of the subject building.   According to the original Notice of Violation and Hearing, the DOB deemed the entire subject building to be without a valid C/O, rendering Respondent's apartment and occupancy in said apartment unlawful.   Petitioner is therefore seeking arrears for an illegal unit.   Moreover, Respondent was not complicit in creating the alterations that invalidated the C/O.   Therefore, Petitioner is barred from collecting rent from Respondent and from maintaining this proceeding to collect such rent for the period in which the C/O is invalid (see Elizabeth Broome Realty Corp. v. China Printing Co., Inc., 157 Misc.2d 572, 598 N.Y.S.2d 138 [Civ. Ct. N.Y. County 1993];  Reinhard v. Vuksanovic, N.Y.L.J., Aug. 1, 1990, at 18, col. 5 [Civ. Ct., N.Y. County] ).

Petitioner notes that there are two possibly conflicting DOB findings regarding the legality of the alterations to the subject building, and argues that a new C/O is not needed for the type of alterations carried out.   However, according to current DOB records, there is a violation pending for the entire building and a Notice requiring a new C/O.   It is for the ECB-and not for this Court-to determine the accuracy of the DOB findings.   In fact, Petitioner has indicated that it has a hearing in September before the ECB regarding the violation.   Should the ECB determine that there is in fact no C/O violation, Petitioner may commence another nonpayment proceeding against Respondent.

Based on the above, the Court dismisses Petitioner's nonpayment proceeding without prejudice.   It is therefore unnecessary to consider the other grounds raised by the parties.   This constitutes the Order of the Court.

RUBEN A. MARTINO, J.