Recitation, as required by CPLR section 2219(a), of the papers considered in review of petitioner’s motion for use and occupancy. PAPERS NUMBERED Petitioner’s motion & Exhibits 1 Respondent’s Affirmation and Affidavit in opposition and Exhibits 2 DECISION/ORDER Upon the foregoing cited papers, the Decision and Order in this motion is as follows: Petitioner commenced the within summary holdover proceeding seeking possession of apartment 52 located at 2167 Crotona Avenue, Bronx, New York. The petitioner seeks possession upon the ground that the respondent, Juan Recio, is violating a substantial obligation of his lease and engaging in nuisance behavior by flooding his apartment and the neighbor below. Respondent moved to dismiss the proceeding, pursuant to CPLR sections 3211(a)(7) and 3212, on the ground that the predicate notices were defective. The Honorable Krzysztof Lach granted the respondent’s motion to dismiss based on breach of the lease, denied respondent’s motion to dismiss the nuisance allegations, and adjourned the proceeding for trial. Petitioner now moves, pursuant to Real Property and Procedures Law, (“RPAPL”) section 745(2), for an order requiring respondent to pay all past due use and occupancy through March 31, 2020, as well as future use and occupancy at $1,173.00 per month. PETITIONER’S MOTION: Petitioner argues that use and occupancy should be granted, since the respondent owed $12,005.50 at the time this motion was filed, respondent remains in control of the premises, and has willfully ignored his obligation to pay past due and ongoing use and occupancy. Respondent’s answer in this proceeding, petitioner argues, alleges outstanding repairs in the apartment, however, respondent commenced an HP proceeding which was settled on December 12, 2019. Petitioner states the repairs, which were non-hazardous, were completed and respondent never restored the proceeding to the court’s calendar for completion of the repairs. Petitioner acknowledges that if hazardous conditions exist in the subject apartment it is not entitled to use and occupancy. RPAPL Section 745(2)(a)(iv) enacted in the Housing Stability and Tenant Protection Act (“HSTPA”) provides “where a respondent has properly interposed a defense based upon the existence of hazardous or immediate hazardous violations of the housing maintenance code in the subject apartment or common areas, the court shall not order deposit or payment of use and occupancy.” In this proceeding, petitioner argues, the non-hazardous repairs in respondent’s apartment were addressed in the HP proceeding and completed. Respondent never restored the HP action to the court’s calendar for non-compliance, therefore, respondent should not be permitted to raise the same repairs in this proceeding and use and occupancy should be granted, as there are no current hazardous conditions in the subject premises. RESPONDENT’S OPPOSITION: Respondent, in opposition, argues, pursuant to the newly enacted RPAPL 745(2)(iv), petitioner’s motion for use and occupancy should be denied as respondent has interposed a defense of breach of warranty of habitability alleging hazardous conditions in the subject apartment and filed complaints with the Department of Housing Preservation and Development (“HPD”) regarding outstanding repairs. HPD conducted an inspection on June 11, 2020 resulting in the placement of two immediately hazardous, “C” violations in the subject apartment which are still outstanding. Therefore, pursuant to the amended RPAPL 745(2)(a)(iv), respondent argues, petitioner is not entitled to use and occupancy as there are immediate hazardous conditions in the subject apartment. Respondent further argues if use and occupancy is granted, pursuant to pre-HTSPA and post-HSTPA, RPAPL Section 745, respondent, who receives public assistance benefits, should only be required to deposit her shelter allowance of $215.00 per month, and any order for use and occupancy should be prospective and not for past use and occupancy. Petitioner’s counsel in his reply affirmation agreed that petitioner is only entitled to use and occupancy in the amount of respondent’s shelter allowance of $215.00 per month, offset by payments received. DECISION: The Housing Stability and Tenant Protection Act (“HSTPA”) of 2019 amended RPAPL Section 745(2)(a), to provide “a summary proceeding, upon the second of two adjournments granted solely at the request of the respondent, or, upon the sixtieth day after the first appearance of the parties…. the court may, upon consideration of the equities, direct that the respondent, upon a motion on notice by the petitioner, deposit with the court sums of rent or use and occupancy that shall accrue subsequent to the date of the court’s order. The HSTPA also added RPAPL Section 745(a)(2)(iv), which precludes the court from granting use and occupancy where the respondent can establish, to the satisfaction of the court, that respondent has properly interposed a defense based upon the existence of hazardous or immediately hazardous violations of the housing maintenance code in the subject apartment or common areas. In this proceeding, respondent, in his answer raised the defense of warranty of habitability, and in his affidavit in opposition to the within motion for use and occupancy, alleges that there are outstanding hazardous conditions in the subject apartment. Respondent stated he commenced the HP action in February 2019 alleging several conditions which are still outstanding. Petitioner, however, alleges that the repairs were completed and on the last court appearance for the HP proceeding on December 12, 2019 the parties acknowledged that there was one outstanding violation for roach infestation. The parties arranged access for an exterminator on December 21, 2019, and if the extermination was not done, respondent never restored the proceeding to the court’s calendar to compel completion. The Court reviewed the HPD online website which indicates on June 11, 2020 HPD conducted an inspection of respondent’s apartment where the inspector found and recorded a class “C” violation for the infestation of roaches which was previously found by HPD on July 26, 2019 and is still outstanding. Therefore, pursuant to RPAPL 7452(a)(iv), the existence of this class “C” immediately hazardous condition, precludes the court from awarding petitioner use and occupancy, at this time. Accordingly, petitioner’s motion for use and occupancy is denied without prejudice. The proceeding is adjourned to September 29, 2020 9:30a.m, Part K, room 350 to be referred to the expeditor for trial. Due to the ongoing Covid-19 pandemic, this date may be rescheduled by the court to a date when court operations have been fully restored. The parties will be notified of any date change. The court will email and mail a copy of this decision to both sides. This constitutes the decision and order of this court. Dated: July 27, 2020
