CORBIN v. BRILEY (2002)

Final judgment reversed without costs and matter remanded to the court below for further proceedings.

 Following landlord's concession that he lacked a proper certificate of occupancy for the subject premises, certified for single-family occupancy but operated as a de facto multiple dwelling (Multiple Residence Law §§ 4[4], 302[1] ), the court denied landlord a money judgment, citing Multiple Dwelling Law §§ 302(1)(b) and 325(2), but granted him possession.   However, the Multiple Dwelling Law does not apply to Yonkers (see, Multiple Dwelling Law § 3 [1] ), and, thus, the absence of such a certificate does not preclude the commencement of a nonpayment proceeding (e.g., Brown v. Williams, 132 Misc.2d 438, 439, 503 N.Y.S.2d 956).   To the extent that Anilesh v. Williams, N.Y.L.J, Nov. 15, 1995 and Bartolomeo v. Runco, 162 Misc.2d 485, 616 N.Y.S.2d 695 hold to the contrary, they should not be followed.

 In any event, absent a default in rent, the court could not award landlord possession in a nonpayment proceeding (RPAPL 711[2] );  Papaleo v. Gentle, N.Y.L.J, Oct. 9, 2001, 2001 WL 1568121 [App.Term, 9th & 10th Jud. Dists.] ).   If, as tenant alleges, the court implicitly converted the nonpayment proceeding to a holdover proceeding, this also was inappropriate under the circumstances presented, which include the absence of a termination notice.   Consent to such a conversion will not be inferred from these unrepresented litigants' silence (Luciano v. Pironti, N.Y.L.J. May 30, 2001 [App.Term, 9th & 10th Jud.Dists.] ).

MEMORANDUM.

FLOYD, P.J. and DOYLE, J., concur. COLABELLA, J., taking no part.