The following papers numbered 1 to 4 were read and considered on the petitioner’s motion. Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation/Affidavits in Opposition 2 Filed Papers 3 Reply 4 DECISION AND ORDER By Order dated March 28, 2023 this Court granted summary judgment and dismissed the above-entitled proceeding finding the above-entitled matter violated Multiple Residence Law §302-a. Petitioner now moves to reargue1 on the grounds the Court misapplied the law as Respondent was not living in the “illegal” unit. That branch of the petitioner’s motion to reargue is granted, and upon reargument the motion to vacate the Court’s March 28, 2023, decision is denied for the reasons which follow. Multiple Residence Law §302-a prohibits an action for possession for nonpayment of rent and the recovery of rent for tenancies in multiple dwellings without a valid certificate of occupancy. Petitioner concedes that the subject property, 28 Poplar Street Yonkers New York is a legal three family2 residence occupied by four families. Citing Commercial Hotel Inc v. White, 752 NYS2d 779 [App Term 2d Dept 2002], Petitioner argues that the established law in the Second Department is “tenants residing in lawful units must specifically demonstrate that the existence of the unlawful unit somehow impacts the lawful unit under the Multiple Residence Law and Multiple Dwelling Law.” (Petitioner Affirmation p. 4 par 14). Commercial Hotel, however, was based on the Rent Stabilization Code. The first issue before the Court is to determine whether the subject premises is a multiple dwelling under the Multiple Residence Law. A multiple dwelling is defined as “a dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the temporary or permanent residence or home of three or more families living independently of one another…” Multiple Residence Law §4 [13]. A dwelling is defined as “a building or structure which is occupied in whole or in part as the home, residence or sleeping place of one or more persons.” Multiple Residence Law §14. Here, Petitioner concedes that over three families reside in the dwelling. Accordingly, the property qualifies as a multiple dwelling and the provisions of the Multiple Residence Law apply. Next, the Court must address Petitioner’s argument that the Respondent’s unit is excluded from the Multiple Residence Law as her unit was listed on the certificate of occupancy. The clear and unequivocal language in Multiple Residence Law §302 [1] provides “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.” (emphasis added). Whether Respondent’s apartment is “legal” is of no consequence. (West 47th Holding LLC v. Eliyahu, 64 Misc3d 133 [A] [1st Dept App Term 2019]). The use of the words “in whole or in part” repeatedly throughout Multiple Residence Law §302 and §302-a. further contradicts Petitioner’s interpretation of the law. Multiple Residence Law §302-a provides that a multiple dwelling shall not be occupied in part until a certificate is issued by the building department that the entire dwelling conforms “in all respects” to the requirements of Multiple Residence Law §302. Further, the definitions for “apartment” or “suite” in the statute are “[t]hat portion of a dwelling consisting of one or more living rooms and occupied by the members of a family, which group of rooms is separated from all other groups within a dwelling.” Multiple Residence Law §4[2]. The words “apartment” or “suite” are not found in Multiple Residence Law §302 [1] or §302-a. Rather, the Legislature chose to use the word “dwelling” repeatedly, making clear that the statue is not limited in applicability to a unit of the building but the entire building. Multiple Residence Law §302-a provides that if a dwelling is occupied in part in violation of Multiple Residence Law §302, no rent shall be recovered by the owner of “such premises”. The words “such premises” refer to the dwelling, not a unit or apartment within the dwelling. Also clear are the consequences for a failure to comply. The language clearly provides that no rent is recoverable and no action for a nonpayment may be maintained. “[T]he lack of a certificate of occupancy precludes landlord’s collection of rent in the entire building, not just in the illegally altered apartments” (208 Himrod Street LLC v. Irizarry, 42 Misc3d 145(A)[App Term 2d Dept 2014] citing Multiple Dwelling Law §302 [1][b], Sheila Props Inc. v. A Real Good Plumber Inc, 59 AD3d 424 [2004]; Jalinos v. Ramkalup, 255 AD2d 293 [1998]; Hutchison v. Greski, 2002 NY Slip Op 40352[U] [App Term, 2d & 11th Jud Dists 2002]). The entire building must conform “in all respects” to the requirements of Multiple Residence Law §302. As there is no valid certificate of occupancy, Petitioner may neither recover a money judgment nor maintain a nonpayment proceeding against Respondent. (see also Chazan LLC v. Maugenest, 19 NY3d 410 [2012]). There are no issues of fact precluding the award of summary judgment. Petitioner neither refutes Respondent’s contentions that there are four families living in the building nor that the certificate of occupancy is for a three-family building. No evidence was submitted contradicting these facts. Rather, Petitioner only raises legal arguments which are properly adjudicated via summary judgment. The motion is denied. Finally with respect to Petitioner’s argument that Multiple Residence Law is inapplicable as the property was built before 1952, same is denied. Multiple Residence Law §302(1) states “no such certificate shall be required for any multiple dwelling existing on July first nineteen hundred fifty-two, for which a certificate of occupancy was not required before such date and in which no changes or alternations commenced on or after such date have been made except in compliance with this chapter…” The subject premises was altered from a two family to a three-family dwelling in 1992 as evidenced from the certificate of occupancy issued at the time. As the Multiple Residence Law specifically states that “[t]his exception (for buildings built before 1952) shall not be deemed to relieve any owner from the obligation to make such dwelling comply with the applicable provisions of this chapter.” Multiple Residence Law §302(1). This exception does not apply. Petitioner’s motion is denied. “If that is an undesirable result, the problem ‘is one to be addressed by the legislature” (Chazon LLC v. Maugenest, 948 NYS2d 571 [Ct App 2012]. Dated: October 13, 2023
