VINA v. CUEVAS (2026)

These consolidated Small Claims actions raise an issue seldom analyzed in reported case law: whether the strict statutory bar against collecting rent contained in MDL § 302(1)(b) applies not only to property owners but also to a prime tenant who sublets an illegal apartment lacking a certificate of occupancy pursuant to MDL § 301. For the reasons set forth below, the Court holds that as with the building owner, a prime tenant who steps into the shoes of a landlord cannot recover rent for a residential dwelling that lacks a certificate of occupancy.

The case was tried over four dates: August 13, 2026, August 20, 2026, September 2, 2026, and September 29, 2026. Indileyde Vina and Keiber Vina Diaz (collectively the "Vinas") appeared self-represented. Gabriel Reyes Cuevas a/k/a Gabriel Reyes ("Cuevas" or defendant) was represented by Nelson De La Cruz, Esq. All parties testified on their own behalf with the assistance of an official Spanish language court interpreter.

Before trial commenced, the Court noted that the Statement of Claim in Cuevas's action under Index No. SC-000188-26 addressed to Keiber Vina Diaz ("Vina Diaz") had been returned to the Court as undeliverable. However, after being given a copy of the Statement of Claim in open court, and after the Court explained to Vina Diaz that he had the right to an adjournment so that the Statement of Claim could be mailed to him and thus properly served, Vina Diaz knowingly and voluntarily elected to proceed with trial, thereby waiving any objection based on service.

The Vinas submitted 16 exhibits into evidence, and Cuevas submitted 24 exhibits. Neither side called additional witnesses. Based upon the testimony and evidence adduced at trial, and in accordance with the statutory mandate that substantial justice be done between the parties according to the rules and principles of substantive law (CCA § 1804), the Court makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

A. The Premises, Leasehold Interests, and Lack of Possessory Right

The building located at 1473 Fulton Avenue, Bronx, New York is a five-story multiple dwelling owned by Bronx 1473-1479 Fulton Avenue LP (the "owner"). By written agreement dated September 1, 2020 (Defendant's Exhibits 10-12), Cuevas entered into a preferential rent-stabilized lease with the owner for "Apartment # 11" at a regulated monthly rent of $1,173.47. Crucially, Paragraph 1 of Cuevas's own lease explicitly specifies: "This Lease does not include the use of the basement, lower level from the apt, garage, or yard" (Defendant's Exhibit 11).

Notwithstanding this explicit exclusion, Cuevas (as Gabriel Reyes) purported to enter into a written lease agreement with Vina Diaz in January 2025 to sublet the basement apartment at 1473 Fulton Avenue for $1,700.00 per month. Although two divergent copies of the agreement were admitted into evidence (Claimants' Exhibit 1 and Defendant's Exhibit 1), the Court credits Cuevas' testimony that the agreed-upon monthly rent was $1,700.00 and that Vina Diaz paid $3,400.00 at inception, representing one month's rent and a $1,700.00 security deposit (see 1/16/25 Receipt, Defendant's Exhibit 2).

On this point, the Vinas could not corroborate their claims regarding the money that was exchanged before they moved in with any evidence. Specifically, they claimed that they paid $3,800, representing $1,900 for one month's rent and the balance as a security deposit. However, the agreement Ms. Vina submitted to the Court indicated that they paid $3,800 for a security deposit, and the Vinas' testimony about the payments they made and the general circumstances regarding the move-in were so vague and lacking in detail as to warrant an adverse finding on the issue of which version of the agreement, including how much money was exchanged and the purpose of said payment, is genuine. The Court therefore credits Cuevas' version of those events.

There is no dispute that Indileyde Vina did not sign the agreement. Further, the agreement does not specify the location or otherwise identify the apartment Cuevas sublet to the Vinas, nor does the agreement provide for reimbursement of reasonable attorney's fees. However, the receipt for rent and security deposit was signed by Cuevas (as Gabriel Reyes) and included in the description the address of the apartment with "#B11" noted (Defendant's Exhibit 2).

No certificate of occupancy for the building was ever presented to the Court during the course of the trial.

B. The Vinas' Occupancy, Receivership of the Building & Cuevas' Possession

The Vinas moved into the basement unit in mid-January 2025. They paid rent for two months (through March 2025) and ceased making rent payments thereafter. Credible testimony and video evidence establish that the Vinas vacated the premises on October 21, 2025, resulting in an unpaid occupancy span of approximately six months.

During this period, the underlying building was placed under a court-ordered receivership. On November 6, 2025, Edmond J. Pryor, as Receiver, served Cuevas with a Ten-Day Notice to Pay Rent demanding $10,876.28 in rent arrears accrued in connection with Apartment #11 (Defendant's Exhibit 19). By letter dated February 26, 2026, the Receiver extended Cuevas' lease dated July 12, 2023, which is not in evidence, for one year as of February 26, 2026 with monthly rent of $1,244.46 (Defendant's Exhibit 8).

C. Building Violations and Housing Court Proceedings

Upon comparing the photographs that Defendant submitted into evidence which depicted the condition of the apartment before the Vinas took possession (Defendant's Exhibits 4-6) with photographs Ms. Vina submitted into evidence on her case-in-chief (Claimants' Exhibits 3-5 and 7), the Court concludes that the condition of the apartment seriously deteriorated during the period of the Vinas' occupancy. Thus, the record contradicts Cuevas's assertions that the unit remained in functional condition. Further, the Court discredits Cuevas' claim that attempts to make repairs were thwarted by the Vinas for the reasons that follow:

First, the Vinas submitted into evidence a series of documents from the New York City Department of Buildings, including summonses dated April 10, 2025, issued pursuant to an on-site departmental inspection (Claimants' Exhibits 11, 13 and 14). DOB Summons No. 039144582P cited the owner for a Class 2 violation under Administrative Code § 28-301.1 for "Failure to maintain building in code compliant manner; Noted at cellar apartment, bathroom ceiling peeling paint and full of mold, at kitchen sink base cabinet full of mold. Exterior side yard drain backed up" (Claimants' Exhibit 13).

DOB Summons No. 039144581N cited the building for a Class 1 violation under Administrative Code § 28-118.3.2 for occupancy contrary to official records, explicitly documenting that while official DOB registration #203826 authorizes 10 legal units across 5 stories, "occupancy contrary [was] observed at cellar level, entrance door marked #11 as class 'A' apartment with kitchen with residential sink, electric stove, 3-piece bathroom and 2 bedrooms" (Claimants' Exhibit 14). The remedy for this violation is listed as "[d]iscontinue illegal occupancy or amend C of O." A third DOB summons, No. 039144579Y, cited the cellar for unpermitted electrical work under Administrative Code § 28-105.1, noting the unlawful installation of 110-volt wiring and a 220-volt line for the stove.

While these summonses are not certified copies, strict statutory rules of evidence do not apply in Small Claims proceedings (CCA § 1804). The Court credits the documented observations of the DOB inspector as reliable evidence substantiating the Vinas' testimony and photographic evidence of severe, unaddressed conditions in the apartment and confirming that the space sublet to the Vinas was an uncertificated, illegal cellar conversion labeled "Apartment #11". Thus, based upon the DOB summonses and the inspector's classification of the space as a cellar apartment, the Court finds that the premises constituted an illegal apartment for which no valid certificate of occupancy existed.

Second, Cuevas entered into evidence as Defendant's Exhibit 3 a Default Judgment for Civil Penalties dated November 4, 2025 by the Hon. Omer Shahid in an HP proceeding in this court entitled Indileyde Vina Silva v. Bronx 1473-1479 Fulton Avenue LP and HPD (Index No. LT-001640-25) (based upon documents in evidence, Ms. Vina is also known as Indileyde Silva and Indileyde Vina Silva). That judgment assessed $2,800.00 in civil penalties against the owner for failure to correct hazardous "Class B" violations and provided in relevant part that the court's underlying Order of July 7, 2025, "remains in full force and effect".

In evaluating Defendant's Exhibit 3, the Court takes judicial notice of the court file under Index No. LT-001640-25. In the July 7, 2025 Order and Notice of Violation, Judge Shahid determined that conditions in the "Apt Bsmt" constituted violations of the Housing Maintenance Code and Multiple Dwelling Law, specifically directing the immediate remediation of "concealed water leaks" and establishing a formal access protocol requiring 48 hours' advance notice to the tenant.

At trial, Cuevas did not present any evidence or testimony that he or building personnel complied with the 48-hour court-ordered access protocol. Meanwhile, Cuevas testified that the Vinas "denied access" for repair work to be performed. However, this claim was conclusory and is therefore rejected as unsubstantiated.

Although the Vinas testified that water leaks damaged their property beyond repair and specifically admitted photographic evidence of the water leaks and mold (Claimant's Exhibits 3-5 and 7) and receipts for furniture (Claimant's Exhibit 6), they failed to establish that the water leaks caused damage to Ms. Vina's property such that they are entitled to recover the full value of what they paid for the items or some lesser amount. Indeed, Cuevas submitted into evidence a video which depicted water dripping onto the couch and the Court finds that the water drip depicted in the video did not render the couch unsuitable for its intended purpose as the Vinas claimed.

As for the mold condition in the apartment, Ms. Vina submitted medical documentation including a letter from Dr. Joseph Ssenyondwa dated June 18, 2025 which indicated her child C. suffers from asthma and "gets affected by mold in the apartment" and advised that the family should move to a different apartment "to prevent frequent asthma attacks" (Claimants' Exhibits 9 and 10). While this record corroborates water incursions and the existence of mold during the tenancy, Ms. Vina did not submit any evidence of medical expenses, bills for medication or any other out-of-pocket costs resulting therefrom.

D. Electricity Charges and Security Deposit

Vina Diaz testified that he made payments to Cuevas toward the electric utility account assigned to the basement space, thereby conceding an agreement to pay for electricity consumed during the Vinas' occupancy. Cuevas submitted an updated final turn-off notice and billing ledger dated October 23, 2025 (Defendant's Exhibit 24), demonstrating an outstanding balance of $1,058.72 through October 22, 2025.

Meanwhile, Cuevas undisputedly retained Vina Diaz's $1,700.00 security deposit. Cuevas submitted no evidence demonstrating compliance with GOL § 7-108(1-a)(e), having failed to provide an itemized statement within 14 days after the Vinas surrendered possession on October 21, 2025. Nor did Cuevas present any evidence or testimony supporting a claim that the Vinas caused damage to the apartment beyond that attributable to ordinary wear and tear (see Defendant's Exhibits 15 and 16) which would entitle Cuevas to retain said deposit.

II. CONCLUSIONS OF LAW

A. Unenforceability of the Cellar Rental Agreement and Bar on Rent Recovery

Cuevas's claim against the Vinas for unpaid rent fails as a matter of law on two independent substantive grounds:

Cuevas did not own the subject building; he was simply a tenant who sublet his apartment. Under the express terms of his lease, Cuevas lacked a leasehold or possessory interest in the cellar apartment. Paragraph 1 of Cuevas's prime lease for Apartment #11 expressly excluded the basement, lower level, and yard. It is a fundamental rule of property law that one cannot give what one does not have. The essential purpose of a lease is to convey an interest in real property; because Cuevas himself possessed no interest in the basement space to convey, his agreement with Vina Diaz was void for failure of consideration and lack of standing (Faison v. Lewis, 25 N.Y.3d 220, 10 N.Y.S.3d 185, 32 N.E.3d 400 [2015]; see also 71 Main Street Associates v. Grosso, 246 A.D.2d 776, 667 N.Y.S.2d 772 [3d Dept. 1998]).

In the event that Cuevas' prime lease did let the basement apartment to him which was properly identified as "Apartment #11" and that said lease mistakenly included boilerplate neither the owner nor Cuevas intended to include, to wit, that the demised premises did not include the basement or lower level, Cuevas still cannot recover unpaid rent from the Vinas (infra). Further, if Cuevas was the prime tenant for the basement apartment labeled "Apartment #11" despite the wording of the prime lease to the contrary, the Court cannot determine on this record whether Cuevas knew the basement apartment was illegally converted and that the premises lacked a valid Certificate of Occupancy for the basement apartment. It is possible that Cuevas was an unwitting victim of the building owner and also failed to read the exclusion in Paragraph 1 of his prime lease, thus genuinely believing that he had the right to sublease the basement.

Ultimately, however, these open questions are immaterial to Cuevas's rent claim. Under well-settled principles of law, a party who signs a written contract is presumed to know its contents and assent to its terms absent fraud or other wrongful conduct (see Superior Officers Council Health & Welfare Fund v. Empire HealthChoice Ass., Inc., 85 A.D.3d 680, 927 N.Y.S.2d 324 [1st Dept. 2011]). Since Cuevas has not claimed, let alone proven, that he was the victim of fraud or other wrongful conduct, he cannot avoid the plain language of Paragraph 1 of the lease, which explicitly barred him from utilizing the basement or lower level. Thus, Cuevas held no possessory interest in the cellar to convey to the Vinas.

The second, separate reason that Cuevas cannot recover rent from the Vinas is that the space he sublet to the Vinas was an illegal apartment.

MDL § 301 provides that no multiple dwelling may be occupied unless a certificate of occupancy has been issued (see e.g. 742 Realty LLC v. Zimmer, 46 Misc.3d 1204[A], 2014 WL 7391395 [Civ. Ct., Kings Co 2014]). MDL § 302(1)(b) prohibits owners from recovering rent for dwelling units that lack a certificate of occupancy (see e.g. Chazon LLC v. Maugenest, 19 N.Y.3d 410, 948 N.Y.S.2d 571, 971 N.E.2d 852 [2012]). Section 302 was intended to ensure landlords comply with proper housing standards by expressly depriving them of the ability to collect rent in the absence of a certificate of occupancy (Caldwell v. American Package Co., Inc., 57 A.D.3d 15, 866 N.Y.S.2d 275 [2d Dept. 2008]).

The Appellate Division, First Department, stated in dicta that a prime tenant would be barred from collecting rent from subtenants where the underlying apartment lacks a certificate of occupancy (Barrett Japaning, Inc. v. Bialobroda, 190 A.D.3d 544, 140 N.Y.S.3d 498 [1st Dept. 2021]), and thus subtenants may simply refuse to pay rent. This is consistent with the Court of Appeals' decision in Chazon, which held that the lack of a certificate of occupancy is a categorical bar to the recovery of rent and that courts should not go on a fact-finding expedition to enforce a tenant's obligation to pay rent (see also GVS Props. LLC v. Vargas, 59 Misc.3d 128(A), 2018 WL 1527809 [App. Term, 1st Dept. 2018]; see generally 8224 Bay Parkway LLC v. Odom, 86 Misc.3d 1255[A], 2025 WL 2406439 [Civ. Ct., Kings Co 2025]).

Cuevas falls within the term "owner", which is broadly defined under MDL § 4[44] to include a lessee or any other person directly or indirectly in control of the dwelling (see Matter of 49 Bleecker, Inc. v. Gatien, 157 A.D.3d 619, 69 N.Y.S.3d 863 [1st Dept. 2018]). Cuevas controlled the subject apartment and represented himself as "Landlord". Further, this result is in accord with the public policy objectives of MDL § 301 and § 302, as the Vinas were unaware that the subject apartment was illegal. This last point is highlighted by the fact that the self-represented subtenants did not specifically argue that the apartment was illegal or lacked a certificate of occupancy, which does not alter this Court's analysis, as the Court must do substantial justice in this small claims action and follow the applicable substantive law.

Thus, this Court finds that Cuevas is prohibited from collecting rent from the Vinas pursuant to MDL § 302.

The Court recognizes that this determination is unfortunate if Cuevas was misled by the building owner about the legality of the basement apartment, particularly if he did rent said apartment from the owner and paid the unpaid rent claimed in the Receiver's ten-day demand (which remains yet another open question on this record). However, Cuevas' remedy for such subterfuge would lie against the owner, not in recovering back rent from the subtenants of an illegal basement apartment.

Accordingly, for at least these two reasons, Cuevas's claim for rent arrears against the Vinas is dismissed with prejudice.

B. Breach of Warranty of Habitability and Security Deposit

Under RPL § 235-b, every residential lease implies a covenant that the premises are fit for human habitation and that occupants shall not be subjected to conditions detrimental to life, health, or safety. At the outset, Ms. Vina is not in privity with Cuevas. Moreover, even if a tort or breach of the warranty of habitability claim could exist without a contractual relationship, Ms. Vina cannot recover for personal injuries on this record. First, she is not claiming her own personal injuries but asserts those claims on behalf of her minor children, yet she did not bring this action in a representative capacity on their behalf. Nor did Ms. Vina submit any evidence regarding medical expenses, treatments or other economic injury she incurred. Indeed, Ms. Vina admitted her children were insured through Medicaid.

Furthermore, while Dr. Ssenyondwa's letter and related clinical records substantiate that C. suffered from asthma and is sensitive to mold, they do not establish quantifiable personal injury damages or an exacerbation of C.'s preexisting asthma condition. Accordingly, Ms. Vina failed to sustain her burden of proof as to personal injury damages, and those claims are dismissed with prejudice.

Nor did Ms. Vina establish causation for property damage to the furniture she and Vina Diaz claimed was damaged due to recurrent water leaks. The Court discredits the Vinas' claims that water leaks destroyed all of the furniture for which they submitted receipts to the Court as Claimants' Exhibit 6, even if Ms. Vina purchased said furniture or otherwise had standing to assert such claims.

Relatedly, because Cuevas is legally barred from collecting rent or use and occupancy under MDL § 302, no rent arrears exist against which an abatement can be applied. Thus, for all these reasons, Ms. Vina's claims must be dismissed with prejudice.

However, to the extent Vina Diaz paid $3,400.00 at inception ($1,700.00 representing January/February 2025 rent and $1,700.00 representing the security deposit), and Cuevas has not established that he retained the security deposit to pay for any repairs that were made to the illegal apartment, Vina Diaz is entitled to a return of the retained security deposit.

C. Electricity Charges

Cuevas established that Vina Diaz, only, agreed to pay the electricity bill for the space and that $1,058.72 remained due and owing after the Vinas vacated the apartment. This separate agreement to pay for utilities is enforceable even if the underlying lease is against public policy.

Assuming arguendo that Vina Diaz is not liable for unpaid electricity that he and his family used at the apartment under a theory of breach of contract, Cuevas would be entitled to recover same under a theory of unjust enrichment. To establish unjust enrichment, plaintiff must show "that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Kramer v. Greene, 142 A.D.3d 438, 36 N.Y.S.3d 448 [1st Dept. 2016] quoting Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011]). Accordingly, Cuevas is awarded $1,058.72 against Vina Diaz for unpaid electricity charges.

The Court dismisses the balance of Cuevas' claim against Ms. Vina for unpaid electricity. Cuevas did not establish that Ms. Vina knew about the obligation to pay electricity or should otherwise be held liable for unpaid electricity under a theory of unjust enrichment particularly given that the Court is holding Vina Diaz responsible for same.

D. Attorney's Fees

Cuevas's request for attorney's fees is denied. Attorney's fees are not recoverable absent a statute authorizing their recovery or an agreement between the parties providing for reimbursement (City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 [1971]). Here, the parties' written lease contains no provision for attorney's fees, and no statute authorizes an award under these circumstances.

III. OFFSET, DAMAGES, AND FINAL JUDGMENT

Offsetting the claims between Cuevas and Vina Diaz:

1. Vina Diaz is entitled to the full return of his retained security deposit pursuant to GOL § 7-108: $1,700.00.

2. Cuevas is entitled to reimbursement for accrued electricity charges: $1,058.72.

3. Subtracting the electricity award ($1,058.72) from the security deposit refund ($1,700.00) yields a net balance of $641.28 in favor of Vina Diaz.

Vina Diaz is further awarded prejudgment interest at the statutory rate of 9% per annum pursuant to CPLR 5001 and 5004, calculated from November 4, 2025 (14 days following vacatur, the date the security deposit was required to be returned under GOL § 7-108).

CONCLUSION

In accordance with the foregoing, it is hereby

ORDERED that the Clerk is directed to amend the caption under Action 2 bearing Index No. SC-000188-26 to amend the claimant's name to Gabriel Reyes Cuevas a/k/a Gabriel Reyes; and it is further

ORDERED that the Clerk is directed to enter a net judgment under Action 2 bearing Index No. SC-000188-26 in favor of Keiber Vina Diaz, only, and against Gabriel Reyes Cuevas a/k/a Gabriel Reyes in the principal amount of $641.28, together with statutory interest at the rate of 9% per annum from November 4, 2025, plus costs; and it is further

ORDERED that the balance of Gabriel Reyes Cuevas a/k/a Gabriel Reyes' claims against Keiber Vina Diaz and Indileyde Vina in Action 2 are severed and dismissed with prejudice; and it is further

ORDERED that Indileyde Vina's claims in Action 1 under Index Number SC-001283-25 are dismissed with prejudice; and it is further

ORDERED that Cuevas' motion for a directed verdict at the conclusion of Ms. Vina's case is denied as moot and any other requests for relief not expressly addressed herein are denied.

This decision and the parties' respective exhibits have been mailed to the Vinas and Counsel at their addresses on file with the Court. The parties should retain their exhibits in the event of appellate review.

This constitutes the Decision and Order of the Court.

Eric J. Wursthorn, J.