IN RE: 49 BLEECKER (2018)

Order, Appellate Term of the Supreme Court, First Department, entered June 13, 2016, which affirmed two orders, Civil Court, New York County (Brenda S. Spears, J.), entered March 14, 2014, denying respondents' motion for summary judgment dismissing the nonpayment proceeding, and granting petitioner's motion for leave to conduct discovery, unanimously reversed, on the law without costs, respondents' motion granted, and petitioner's motion denied as moot.  The Clerk is directed to enter judgment accordingly.

Petitioner was the net lessee of the third floor of a six-story building, a de facto multiple dwelling;  the net lease provided, inter alia, that there was no permanent certificate of occupancy for either the building or the demised premises.  In April 2013, petitioner brought this proceeding alleging that respondents, its subtenants, had failed to pay residential use and occupancy since January 2013.  Affording the relevant statutory language its natural and ordinary meaning (see generally Matter of Smith v. Donovan, 61 A.D.3d 505, 508, 878 N.Y.S.2d 675 [1st Dept. 2009], lv denied 13 N.Y.3d 712, 891 N.Y.S.2d 304, 919 N.E.2d 719 [2009] ), we conclude that the proceeding must be dismissed because petitioner was not entitled to collect rent from respondents.

For purposes of the Multiple Dwelling Law, an “owner” is broadly defined to include a “lessee” (Multiple Dwelling law § 4[44] ).  Respondents' unit constituted a “dwelling” under the Multiple Dwelling Law [“any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings” (Multiple Dwelling Law 4[4] ).  The owner of a “dwelling or structure ․ occupied in whole or in part for human habitation in violation of [§ 301]” may not recover rent for the period during which there is no certificate of occupancy for “such premises” (Multiple Dwelling Law § 302[1][b] ).  Nor may the owner maintain an action or special proceeding for possession of the premises for nonpayment of “such rent” (id.).  Thus, petitioner, as owner of respondents' dwelling, was precluded from charging respondents rent or other remuneration while the building lacked a certificate of occupancy for residential use (see generally Caldwell v. American Package Co., Inc., 57 A.D.3d 15, 866 N.Y.S.2d 275 [2d Dept. 2008] ).