Recitation, as required by C.P.L.R. §2219(a), of the papers considered in review of this motion. Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits 2 Replying Affidavits Exhibits 3-17 Other DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows: BACKGROUND & PROCEDURAL POSTURE The Petitioner, 1165 Fulton Avenue (“Petitioner”), commenced this nonpayment proceeding against Tyana Goings, (“Respondent”), in February 2019, alleging that Respondent was indebted to the Petitioner in the amount of $5,261.25 in rent and additional rent. Respondent answered this nonpayment proceeding on February 26, 2019, asserting as defenses a general denial, and that Respondent suffered a financial hardship but made a partial payment on February 22, 2019. Both parties are represented by counsel. The parties first appeared on March 4, 2019, and the proceeding was then adjourned to March 31, 2019, on Petitioner’s nonappearance. On that date, the proceeding was adjourned to April 9, 2019, for Respondent to meet with counsel. On May 3, 2019, the proceeding was adjourned to May 31, 2019, for trial. In the interim, Respondent, by counsel, filed the instant motion, asking for an order dismissing the instant proceeding pursuant to CPLR §3211 (a)(7), RPAPL §741(3), and MDL §§301, 302(b), alleging that occupancy of the subject apartment was illegal and therefore Petitioner was barred from maintaining this proceeding, or, in the alternative granting Respondent leave to conduct discovery. The parties then adjourned this proceeding to June 21, 2019, for motion practice and Petitioner filed a cross motion for summary judgment pursuant to CPLR §3212 and §409(b) in the interim. The Law and Its Application Respondent argues the proceeding must be dismissed pursuant to CPLR §3211(a)(7) as Petitioner is precluded from collecting rent for the subject premises as the premises is occupied in a manner that violates the Certificate of Occupancy. In support, Respondent cites to the Certificate of Occupancy which states there are forty residential dwelling units located on the six stories of the subject building. Respondent contends that the Certificate of Occupancy provides no support for the existence of a legal dwelling unit located in the basement of the building. Respondent also points to Environmental Control Board (“ECB”) Violation 35079104R, issued on July 16, 2014, which reads “[r]esidence altered for occupancy as a dwelling for more than the legally approved# of families. Class ‘A’ apt created at basement level — formal community room as per board president kitchen w/gas stove and 3PC.” This violation specifically references infractions and sections of law that read “residence altered for occupancy as a dwelling for more that the legal[sic] approved number of families” and “occ[sic] contrary to that allowed by the C of O or DOB records.” Further, Respondent states that she is unable to access the apartment from the front door of the subject building. She states that the entrance to her apartment is surrounded by garbage, debris, and exposed pipes/electrical wiring, and that there is only one means of egress. Respondent raises a warranty of habitability claim, alleging the presence of mold in the kitchen and bathroom areas, and that the subject apartment gets extremely hot throughout the year, due to the pipes located throughout the apartment. In opposition, Petitioner maintains that the subject apartment is a legal apartment and is one of the forty residential units provided for in the Certificate of Occupancy. In support, Petitioner offers portions of the co-operative’s Offering Plan. The Offering Plan lists as one of the forty dwelling units a basement apartment. This unit is alleged to have been occupied by the super at the time of conversion. Petitioner avers the ECB violation cited by Respondent applies only to the community room in the basement. In support is an affidavit from the property manager, Iliana Mckenzie, which states, in relevant part, “[t]he ECB Violation from 2014 which Respondent annexed to her motion, was for the community room in the basement and has no relation or impact on the subject premises.” (Affidavit of Iliana Mckenzie, at 10). Petitioner contends there is no bar on maintaining this nonpayment proceeding regardless of the open ECB violation. Petitioner further cross moves for summary judgment, stating that there exists no issue of material fact, and that Respondent’s defense of financial hardship is not an adequate defense to this summary nonpayment proceeding. Multiple Dwelling Law §301 Multiple Dwelling Law (“MDL”) §301 provides that “no multiple dwelling shall be occupied in whole or in part until the issuance of a certificate by the department that said dwelling conforms in all respects to the requirements of this chapter, to the building code and rules and to all other applicable law.” The subsequent section of the MDL, §302 provides that an owner of a building in violation of §301 may be barred from collection of rent in cases where residential use is in violation of §301. Namely, MDL §302 states, in relevant part, that “if any dwelling or structure be occupied in whole or in part for human habitation in violation of section three hundred one no rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefore, or for possession of said premises for nonpayment of such rent.” Prior to 2012, the courts of this department often found that there were limitations on the general application of MDL §302. Specifically, the courts looked to whether the following conditions were met: “(1) the C/O violation renders the tenant’s residential occupancy unlawful; (2) the arrears sought are only for illegal units; and (3) the tenant is not complicit in the existence and maintenance of the illegal apartment.” (58 East 130th Street LLC v. Mouton, 25 Misc 3d 509, 2009 NY Slip Op 29309 [Civ Ct NY County 2009]; Hart-Zafra v. Singh, 16 AD3d 143 [App Div 1st Dep't 2005]. In 2012, the Court of Appeals made it clear that no such limitation was mandated under the law in its decision in Chazon LLC v. Maugenest (19 NY 3d 410 [2012]), stating that the limitation of the application of MDL §302 “may make sense from a practical point of view. But we find nothing in the opinions endorsing such results, nothing in the arguments of the landlord here, and nothing anywhere else to explain how they can be reconciled with the text of the statute. They simply cannot.” (Id. at 415; see also West 47th Holdings LLC v. Eliyahu, 64 Misc 3d 133[A], 2019 NY Slip Op 51066[U] [App Term 1st Dept 2019] ["If a dwelling or structure is 'occupied in whole or in part for human habitation in violation of [MDL 301]…[n] rent shall be recovered by the owner of such premises…and no action or special proceeding shall be maintained therefore, or for possession of said premises for nonpayment such rent.’ This is such a proceeding and it is barred, even if tenant’s apartment was not one of the newly created apartments.”]; GVS Properties LLC v. Vargas, 59 Misc 3d 128[A], 2018 NY Slip Op 50396[U] [App Term 1st Dept 2016] aff’d 172 AD3d 466 [App Div 1st Dept 2019]; 49 Bleeker, Inc v. Gatien, 157 AD3d 619 [App Div 1st Dept 2018]. There is no definitive determination whether the ECB violation in question does indeed apply to a formal community room or the subject premises. However, pursuant to the holding of Chazon and its progeny, the very existence of an open ECB violation that states the premises is being occupied in a manner contrary to the Certificate of Occupancy mandates dismissal of this action pursuant to CPLR §3211(a)(7), MDL §301, and MDL §302. Conclusion Due to the presence of an open and unresolved ECB violation stating that the occupancy of the subject building is in violation of the Certificate of Occupancy, Respondent’s motion to dismiss is granted. The court need not reach Respondent’s other requests for relief in its motion. Petitioner’s cross motion for summary judgment is further denied. This constitutes the Decision and Order of this court. Dated: September 16, 2019
