1304 MADISON LLC v. 24 26 93 (2024)

Order, Supreme Court, New York County (Verna L. Saunders, J.), entered May 10, 2024, which granted plaintiff's motion to confirm the Judicial Hearing Officer's (JHO) report directing defendants-appellants to pay plaintiff damages for their use and occupancy of plaintiff's rooftop and for debris removal, unanimously affirmed, without costs.

The JHO's finding that plaintiff is entitled to damages from defendants’ unauthorized use of its rooftop for recreational purposes since January 2012 is supported by record (see Hopper v. Premier Coach, Inc., 111 A.D.3d 508, 509, 974 N.Y.S.2d 784 [1st Dept. 2013];  see also Herman v. Gill, 61 A.D.3d 433, 876 N.Y.S.2d 55 [1st Dept. 2009]).  Moreover, defendants’ reliance on Multiple Dwelling Law § 302 is misplaced, as the subject rooftop is on a commercial building, and defendants were undisputedly using it as an outdoor recreational space rather than as a “dwelling” (see e.g. Silver v. Moe's Pizza, Inc., 121 A.D.2d 376, 378, 503 N.Y.S.2d 86 [2d Dept. 1986] [absence of certificate of occupancy for commercial premises does not relieve tenant of its obligation to pay rent];  cf.  Jo–Fra Props., Inc. v. Bobbe, 81 A.D.3d 29, 34, 917 N.Y.S.2d 119 [1st Dept. 2010], lv dismissed 17 N.Y.3d 933, 935 N.Y.S.2d 575, 959 N.E.2d 512 [2011] [landlord cannot maintain an action for unpaid rent on premises that were not in compliance with the Multiple Dwelling Law]).  There is no basis to otherwise disturb the JHO's credibility determinations (see Matter of F.P.D. Realty Corp., 267 A.D.2d 111, 112, 700 N.Y.S.2d 146 [1st Dept. 1999]).