452 LLC v. Maria Avila et al, Respondents. (2026)

Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion with Affirmation in Support

[With Exhibits] [NYSCEF Doc. Nos. 30-38] 1

Affirmations in Opposition

[With Exhibits] [NYSCEF Doc. No. 41] 2

Affirmation in Reply [NYSCEF Doc. No. 41] 3

After oral argument, and upon the foregoing cited papers, the decision and order on this motion is as follows:

FACTUAL AND PROCEDURAL HISTORY

This is a summary nonpayment proceeding commenced by 452 City Island LLC ("petitioner") against Maria Avila et al ("respondent"), seeking possession of 452 City Island Avenue, Apt. 3R, Bronx, NY 10464 ("the subject premises" or "apartment"), for unpaid rental arrears. (see NYSCEF Doc. 1).

Respondent failed to appear or answer and, on or about May 14, 2025, petitioner obtained a default judgment and warrant. (see NYSCEF Docs. 9 & 10).

After service of a notice of eviction, respondent filed a pro se Order to Show Cause ("OSC") to vacate the default. She then obtained counsel and filed supplemental papers.

By two-attorney stipulation dated February 2, 2026, the OSC was granted on consent, and the default judgment and warrant were vacated. (see NYSCEF Doc. 29).

By counsel, respondent now moves for dismissal on the basis that the building is occupied in violation of the I-card/certificate of occupancy requirements of MDL § 301, thereby requiring dismissal pursuant to MDL § 302.

In support, respondent attaches the pre-1929 I-card for the building showing the building was a tenement house approved for 6 residential units total - 2 per floor for floors 1, 2 and 3, each with one private bath, for a total of 6 bathrooms. No occupancy is allowed in the basement/cellar, and no business use is allowed. (see NYSCEF Doc. 38).

No new temporary or permanent Certificate of Occupancy ("C of O") was ever issued for the building altering the number or location of units. (see NYSCEF Docs. 34 & 35).

Respondent also attaches 2 notices of violation from the Department of Buildings ("DOB"), Violation No. 34787215K ("illegal use violation") and Violation No. 34787216M ("illegal work violation"), both issued on September 2, 2009. (see NYSCEF Docs. 32 & 36).

The illegal use violation states as follows: "occupancy contrary to that allowed by the building department records: notes: I-card (from HPD records) indicates occupancy as 6 family dwelling (2 family on each floor) & observed created class "A" apartment at cellar level (used by super of bldng), with 2 bedrooms, living room, kitchen (gas stove, cabinets, sink, refrigerator), 3pc bathroom, storage closets, utility room, and provided secondary means of egress. Remedy: Discontinue improper use forthwith." (see NYSCEF Docs. 32 & 33).

The illegal work violation states as follows: "work without a permit. Work noted: Erected full sheetrock partitions at cellar level creating class "A" apartment with 2 bedrooms, kitchen (gas stove, refrigerator, sink), 3pc bathroom, and provided secondary means of egress at the windows (operable open gates), front entry door at passageway (alleyway) of property lot. Remedy: Obtain permit if feasible or restore property to prior legal condition." (see NYSCEF Docs. 36 & 37).

Both violations remain open. Each violation states as follows: "Certification Status: NO COMPLIANCE RECORDED; A Certificate of Correction must be submitted to the Administrative Enforcement Unit (AEU) for all violations. A violation that is not dismissed by OATH/ECB will continue to remain ACTIVE or 'open' on DOB records until acceptable proof is submitted to the AEU, even if you have paid the penalty imposed by OATH/ECB." (see NYSCEF Docs. 33 & 37).

Respondent argues that, while no C of O was originally required by MDL § 301 as the building was constructed prior to 1929, a valid C of O is required if the building is later altered, like by adding additional units. As such, the C of O exemption under MDL § 301(1)(a) was no longer applicable and petitioner was required to obtain a C of O compliant with the construction of the additional unit.

As a result of petitioner altering the basement by adding a residential unit beyond the 6 allowed in the I-Card, but did not obtain a C of O, respondent argues petitioner is in violation of MDL § 301 and therefore is barred from collecting rent pursuant to MDL § 302.

In opposition, petitioner argues the C of O requirement of MDL § 301 is inapplicable as the building was built prior to January 1938. Furthermore, petitioner claims the total bar on rent is inapplicable where the non-conforming or unlawful use of the altered premises was discontinued at the time of the non-payment proceeding.

Petitioner also argues it cured the DOB violations because it discontinued the use of the basement apartment as a residential unit when the super moved out "years ago" and the plumbing fixtures have been capped off, all prior to the commencement of this proceeding and prior to respondent moving into the subject premises in 2019.

In reply, respondent points out that the superintendent's purported vacatur of the illegal basement unit is irrelevant to whether the illegal alteration remains, that the alternations are extensive and significant, including "constructing a kitchen with a gas stove, refrigerator and sink, and creating a three-piece bathroom," and they remain without a conforming C of O.

DISCUSSION

When considering a motion under CPLR § 3211, the court must afford the pleadings a liberal construction, must deem the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The criterion is usually whether the petitioner has stated a cause of action, not whether petitioner actually has one. (see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 887 [2013]; Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).

However, where, as here, "evidentiary material is submitted and considered on a motion to dismiss a pleading pursuant to CPLR § 3211(a)(7), the question becomes whether the proponent of the pleading has a cause of action, not whether the proponent has stated one." (936 TYH RM Bronx LLC v Brujan, 2022 NY Slip Op 33642[U] at *2-3 [Civ Ct, Bronx County 2022] [emphasis added], citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

Pursuant to MDL § 302, "if any dwelling or structure is occupied in whole or in part without a conforming certificate of occupancy in violation of MDL § 301, the owner cannot recover rent for the period of noncompliance and cannot maintain an action or special proceeding for nonpayment of such rent." (155 Linden LLC v Washington, 2025 NY Slip Op 35070[U], * 6 [Civ Ct, Kings County 2025]; 1165 Fulton Ave HDFC v Goings, 65 Misc 3d 1210[A], *2-3 [Civ Ct, Bronx County 2019]; Chazon, LLC v Maugenest, 19 NY3d 410, 416 [2012]).

The mandate of MDL § 302, requiring a conforming C of O, and the prohibition against collecting rent under MDL § 301, applies whether or not the building predates the C of O requirement. (see W. 48th Holdings LLC v Eliyahu, 64 Misc 3d 133[A], *1-2 [App Term, 1st Dept. 2019] ["Notwithstanding that the building was constructed prior to the requirement for obtaining a certificate of occupancy, landlord's subdivision of two apartments into four units constituted substantial alterations which require the building to have a certificate of occupancy."], citing 208 Himrod St., LLC v Irizarry, 42 Misc 3d 145[A] [App Term 2d Dept, 2nd, 11th & 13th Jud Dists. 2014]; see also 1245 Stratford, LLC v Osbourne, 84 Misc 3d 1228[A], *5 [Civ Ct, Bronx County 2024] ["the starting point is the rule that multiple dwellings erected on or after April 18, 1929, and those built before that date that are thereafter altered, are not permitted to be occupied until the issuance of a certificate of compliance or occupancy."]).

Where a building has been altered such that the I-Card or C of O is no longer accurate, i.e. by creating an additional unit, MDL § 302's requirement of a conforming C of O is automatically triggered, and a landlord must then obtain such C of O to continue to collect rent or maintain proceedings for collection or rent. (see 1165 Fulton Ave HDFC v Goings, 65 Misc 3d at *2 [creation of a dwelling unit in the basement triggered the requirement of obtaining a new C of O]; 1245 Stratford, LLC v Osboume, 84 Misc 3d at *1 [creation of new dwelling units, in contravention of the number of units on the I-Card, without a new C of O, resulted in landlord being barred from collecting rent]; W. 48th Holdings LLC v Eliyahu, 64 Misc 3d at *1-2 [App Term, 1st Dept 2019] [subdivision of two units into four required a conforming C of O even where the building initially pre-dated C of O requirements]).

Where there has been an alteration requiring a new C of O, the prohibition against collecting rent is automatically triggered if no C of O is obtained, irrelevant of what unit the violation was issued for and regardless of whether the complaining tenant resides in an illegal unit or a legal one. (see 8224 Bay Parkway LLC v Odom, 86 Misc 3d 1255[A], *2 [Civ Ct, Kings County 2025] [involving conversion of cellar to dwelling unit whereas respondents resided in Apt. 2B]; GVS Props. LLC v Vargas, 59 Misc 3d 128[A], *1 [App Term, 1st Dept 2018] [where C of O was issued for 53 units, and the building had 60 units at the time of trial, "landlord is barred from collecting rent for the entire building."]; 936 TYH RM Bronx LLC v Brujan, 2022 NY Slip Op 33642[U] at *3 ["Petitioner's arguments must fail because rent is barred even if the tenant's unit is not the illegal unit."], citing West 48th Holdings LLC v. Eliyahu, 64 Misc 3d at *1-2; 49 Bleecker, Inc. v Gatien, 157 AD3d 619, 620 [1st Dept 2018]; 1165 Fulton Ave HDFC v Goings, 65 Misc 3d at *2; see also 155 Linden LLC v Washington, 2025 NY Slip Op 35070[U] at * 6-7 ["the Court of Appeals in Chazon, LLC rejected limitations on the applicability of MDL § 302 . . . Whereas previously some courts looked to whether a certificate of occupancy violation rendered a particular tenant's residential occupancy unlawful, or delved into the circumstance surrounding what caused the violation, the court in Chazon, LLC determined that such inquiries which may result in imposing limitations on the applicability of MDL § 302 'may make sense from a practical point of view ... but we find nothing in the opinions endorsing such results ... and nothing anywhere else to explain how they can be reconciled with the text of the statute. They simply cannot'."], citing Chazon, LLC v. Maugenest, 19 NY3d at 415).

It is of no consequence whether the landlord paid the fine associated with the violation if the violation has not been certified as corrected, as an open violation constitutes prima facie evidence of its continued existence. (SG & Sons Realty LLC. v Noman, 88 Misc 3d 1213[A], *3 [Civ Ct, Kings County 2026] ["Once a violation by ECB is placed, regardless of whether the fine is paid, a party must file a certification of correction ... A failure to do so, allows the violation to remain open . . . As an open ECB violation currently exists regarding the certificate of occupancy, petitioner is barred from collecting rent . . . "]; 936 TYH RM Bronx LLC v Brujan, 2022 NY Slip Op 33642[U] at *3 ["The undisputed OATH/ECB violation requires dismissal of this case. When a violation exists for occupancy at odds with the certificate of occupancy, the building, essentially, lacks a certificate of occupancy."] [internal citations omitted]; 8224 Bay Parkway LLC v Odom, 86 Misc 3d at *3; 1165 Fulton Ave HDFC v Goings, 65 Misc 3d at *3 ["pursuant to the holding of Chazon and its progeny, the very existence of an open ECB violation that states the premises is being occupied in a manner contrary to the Certificate of Occupancy mandates dismissal ..."]; 155 Linden LLC v Washington, 2025 NY Slip Op 35070[U] at * 6-7 ["There are sixteen (16) open OATH/ECB violations for occupancy contrary to the building's certificate of occupancy, and those violations are prima facie evidence that the certificate of occupancy violations exist."]).

Here, it is undisputed that the I-Card provides for only six residential units on floors 1, 2 and 3, and 6 bathrooms. (see NYSCEF Doc. 38). It is also undisputed that petitioner illegally altered the building, creating a seventh residential unit in the cellar, with a seventh bathroom (and kitchen), despite the I-Card limit of 6 units and the I-Card failure to provide for any residential units in the cellar. (see NYSCEF Docs. 32, 33, 36, 37, 38).

Lastly, it is undisputed that petitioner never obtained a permit for creation of the illegal cellar unit or a conforming C of O, and never restored the building back to its prior legal condition. Petitioner's sole attempt to remedy the issue was to discontinue occupancy of the illegal unit and cap the plumbing fixtures off.

Consequently, it is undisputed that the building has been altered in contravention of the allowable occupancy in the I-Card. Petitioner is therefore in violation of MDL § 301 and, pursuant to MDL § 302, cannot collect rent or maintain nonpayment proceedings for the entire building.

Petitioner's sole argument in opposition is that the illegal use was discontinued when the super moved out and plumbing fixtures were capped off. Petitioner also relies on two trial-level decisions wherein the courts found that, where the improper use of the unit was discontinued, the landlord was not barred from collecting rent. (see 663 Madison Ice, LLC v Jansen, 87 Misc 3d 1211[A], *2 [Civ Ct, Kings County 2025]; Fort Washington Intercontinental Assoc., LLC v Ramirez, 88 Misc 3d 1201[A], *3 [Civ Ct, New York County 2025]). However, petitioner's argument that it is not barred from collecting rent is unpersuasive.

The law is clear that an open violation is prima facie evidence of its continued existence. (see Mackof v 407-413 Owners Corp., 19 Misc 3d 131[A], *1 [App Term, 1st Dept 2008]). As such, petitioner's claim that the illegal use violation was cured must fail in the face of prevailing caselaw. Even if the court were to entertain this claim, there is no evidence in support save for petitioner's agent's bare, self-serving allegations.

The decisions petitioner relies on are distinguishable from the facts herein. In Jansen, the violation at issue was for illegal cellar use where the landlord installed "minor partition work." (see 663 Madison Ice, LLC v Jansen, 87 Misc 3d at *2-3). There, the court found that where the illegal use was discontinued years prior to the commencement of the case at bar, the landlord was not barred from collecting rent. (see Id. at *3).

In Ramirez, like in Jansen, the violations at issue were for illegal use: a DOB order alleging the cellar storage room was converted to a Single Room Occupancy ("SRO"), illegally creating an additional unit, and a vacate order issued by the Department of Housing Preservation and Development ("HPD") ordering the illegal cellar units to be vacated. (see Fort Washington Intercontinental Assoc., LLC v Ramirez, 88 Misc 3d at *4). The court denied the tenant summary judgment where it was unclear whether the illegal use was discontinued prior to commencement of the nonpayment case and pointed out that the DOB violation was dismissed after a hearing. (see Id. at *5).

Here, unlike in Ramirez, all violations at issue remain open and uncorrected to date. (see NYSCEF Docs. 32, 33, 36, 37).

In arguendo, if this court were to credit petitioner's agent's self-serving allegations that the illegal use was discontinued prior to respondent moving in, and follow the holdings in Jansen and Ramirez, dismissal would still be appropriate.

Unlike in Jansen and Ramirez, where the only violations were for illegal use, which can allegedly be cured by discontinuing such use, here, there is an important and additional violation at issue: the illegal work violation. (see NYSCEF Docs. 36 & 37).

Unlike the illegal use violation, where the remedy is to discontinue the improper use (see NYSCEF Docs. 32 & 33), the illegal work violation clearly states that the remedy is to obtain a permit for said work (requiring a new C of O for the additional unit in the cellar) or restore the cellar to the prior legal condition (see NYSCEF Docs. 36 & 37).

Petitioner here has not obtained a permit or conforming C of O, and has not alleged that it has restored the cellar to the prior legal condition, which would require removal of the gas stove, refrigerator and sink in the illegal kitchen, removal of the fixtures in the illegal three-piece bathroom, and removal of the full sheetrock partitions. (see NYSCEF Docs. 36 & 37). Capping off the plumbing fixtures and removing the superintendent from the premises certainly does not entail a remedy for the illegal work violation.

Given the foregoing, it is evident that the cellar unit remains in violation of the occupancy allowed by the I-Card and petitioner failed to obtain a permit and conforming C of O or demolish the illegal unit and restore the cellar back to its prior legal condition.

The existing cellar unit is therefore in violation of MDL § 301 and petitioner is prohibited for collecting rent or maintaining proceedings to collect rent for the entire building pursuant to MDL § 302.

If this penalty seems unreasonable or the result harsh, such is mandated by the plain language of the relevant statutes, and the problem must be addressed to the Legislature. (see Chazon, LLC v Maugenest, 19 NY3d at 415-416 [In the absence of compliance, the law's command is quite clear: 'No rent shall be recovered by the owner of such premises . . . and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.' . . . In other words, the statutes leave these parties in their present stalemate until compliance has been achieved . . . If that is an undesirable result, the problem is one to be addressed by the Legislature."]; 1245 Stratford, LLC v Osboume, 84 Misc 3d at *6; SG & Sons Realty LLC. v Noman, 88 Misc 3d at *3; West 48th Holdings LLC v. Eliyahu, 64 Misc 3d at *1-2)

CONCLUSION

Based on the foregoing, it is So Ordered that respondent's motion is granted. A judgment dismissing the proceeding is entered in favor of respondent

This constitutes the decision and order of the court. It will be posted on NYSCEF.

Dated: July 31, 2026

Bronx, New York

SO ORDERED,

HON. MADALINA DANESCU

Judge, Housing Part

Madalina Danescu, J.