65 FW LLC v. Vianca V. Espinal, Respondent-Tenant-Appellant, and John Doe/Jane Doe, Respondents. (2026)

Per Curiam.

Order (Daniele Chinea, J.), dated December 26, 2025, insofar as appealed from, reversed, without costs, tenant's motion for summary judgment granted and the petition dismissed.

This nonpayment proceeding commenced on or about July 3, 2025 and seeking rent for the months of April and May 2025, should have been dismissed on tenant's summary judgment motion. The summary judgment record conclusively established that at all relevant times, there was a violation of the building's certificate of occupancy, relating to the illegal use of two first floor apartments as medical offices. The Department of Buildings previously issued a violation which directed that landlord either "discontinue illegal occupancy or amend the [certificate of occupancy]." To the extent the record indicates that this violation was resolved, that resolution occurred after this proceeding was commenced. Since Multiple Dwelling Law § 302 (1) (b) bars landlord from recovering rent for the period of noncompliance or maintaining a nonpayment proceeding, this proceeding should have been dismissed (see Chazon, LLC v Maugenest, 19 NY3d 410, 415 [2012]; Matter of GVS Props. LLC v Vargas, 172 AD3d 466, 466 [2019]; Matter of 49 Bleecker, Inc. v Gatien, 157 AD3d 619, 619-620 [2018]).

We note that landlord has not submitted a respondent's brief.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 15, 2026