HART ZAFRA v. SINGH (2005)

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered June 4, 2004, which, to the extent appealed from, denied plaintiff owner's motion for summary judgment upon his second cause of action seeking an award of use and occupancy, unanimously affirmed, without costs.

The circumstance that plaintiff owner, during the period in question, permitted defendants to reside in the subject basement apartment without obtaining a proper certificate of occupancy for the unit, precludes his recovery of use and occupancy (see Jalinos v. Ramkalup, 255 A.D.2d 293, 679 N.Y.S.2d 419 [1998] ).   This is not a situation in which the owner was prevented by the occupants from bringing the unit into compliance (cf. First Edition Composite v. Wilkson, 177 A.D.2d 297, 575 N.Y.S.2d 870 [1991] ).