LLC v. Suzanne Jacoby, Respondent-Tenant-Respondent. (2023)

Supreme Court, Appellate Term, New York,

Ormonde Equities LLC, Petitioner-Landlord-Appellant, v. Suzanne Jacoby, Respondent-Tenant-Respondent.

570648 /23

Decided: December 21, 2023

PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.

Per Curiam.

Order (Daniele Chinea, J.), dated November 18, 2022, affirmed, with $10 costs.

Civil Court properly granted tenant's motion to dismiss the nonpayment petition. It is undisputed that the City of New York, by its Office of Administrative Trials and Hearings, affirmed a finding that the "altered changed building [is] occupied without a valid certificate of occupancy," in violation of Administrative Code of City of NY §§ 28—118.3.1 and 28—118.3.2. The lack of a certificate of occupancy for the building precludes landlord from seeking to recover rent or use and occupancy from tenant (see Multiple Dwelling Law §§ 301, 302[1][a],[b]; Chazon, LLC v Maugenest, 19 NY3d 410, 415 [2012]; Barrett Japaning, Inc. v Bialobroda, 190 AD3d 544 [2021]; Matter of 49 Bleecker, Inc. v Gatien, 157 AD3d 619 [2018]), even though tenant's apartment may not have been affected by the alteration/change underlying the violation (see West 48th Holdings LLC v Eliyahu, 64 Misc 3d 133[A], 2019 NY Slip Op 51066[U] [App Term, 1st Dept 2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: December 21, 2023

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