513 WEST 150 GARDENS LLC v. SIMMONS (2024)

Order (Alberto M. Gonzalez, J.), entered June 3, 2024, affirmed, with $10 costs.

Civil Court properly granted tenant's motion for summary judgment dismissing the petition in this nonpayment summary proceeding. The evidentiary submissions conclusively demonstrate that the subject apartment was the result of an illegal alteration made in 1997 by a prior owner in combining two apartments through an internal spiral staircase, resulting in a violation being issued by the Department of Buildings stating, that “occupancy [was] contrary to that allowed by the certificate of occupancy” (c/o) and that the “remedy: [was to] discontinue illegal occupancy [and to] amend c/o.” Since there is no evidence that the c/o was amended to reflect the alterations, landlord was precluded from recovering rent or use and occupancy from tenant (see Multiple Dwelling Law §§ 301[1] and 302[1][a], [b]; Chazon, LLC v Maugenest, 19 NY3d 410, 415 [2012]; Matter of GVS Props. LLC v Vargas, 172 AD3d 466 [2019]; Matter of 49 Bleecker, Inc. v Gatien, 157 AD3d 619 [2018]; East Harlem MEC Parcel C, L.P. v Smalls, 82 Misc 3d 127[A], 2024 NY Slip Op 50317[U] [App Term, 1st Dept 2024]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur