Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion. Papers Respondent’s Notice of Motion, Affirmation, Affidavit, Attached Exhibits 1 Petitioner’s Notice of Cross-Motion, Opposition & Support Memorandum, Affidavit, Exhibits 2 Respondent’s Notice of Cross-Motion, Opposition & Support Memorandum, Affidavit, Exhibits 3 Petitioner’s Opposition Memorandum and Exhibits 4 The underlying proceeding is an unregulated holdover that commenced on August 6, 2021. The case was first calendared on January 7, 2022. The respondent filed an ERAP application sometime after that, and the case was moved to the Administrative Calendar. Petitioner now moves for an Order vacating the ERAP stay and restoring the case to the Court’s calendar. Respondent, by counsel, opposes the motion and cross-moves seeking dismissal of the proceeding on various grounds. To proceed with the respondent’s cross-motion and what the petitioner calls their own ‘cross-motion,’ the Court must determine whether the ERAP stay should be vacated. Controlling law holds that the statute’s plain text requires that while the tenant’s ERAP application is pending, the proceeding is stayed by operation of law. Ben Ami v. Ronen, 191 NYS3d 569, 2023 NY Slip Op 23182. This statutory stay is subject only to nuisance exceptions and personal use holdovers. Id., L. 2021, ch 56, §1, part BB, §1, subpart A, sec 1, §9-a, as amended by L. 2021, ch 417, §2, part A, §6. However, financial assistance through the statute is available to eligible households if the household “is a tenant or occupant obligated to pay rent in their primary residence.” Id. Sec 5(1)(a)(i); U.S. Bank Trust, NA v. Altson, et al., 74 Misc3d 1068, 162 NYS3d 909, 2022 NY Slip Op 22051. The petition attests that the premises are a one-family house (Pet. 8). Yet, the respondent only occupies a portion of the premises described and designated by the petitioner as an ‘Attic.’ While the respondent disputes this description, claiming their residence is located on the 3rd floor and designated as such, they assert that the premises are being operated as an SRO as various separated rooms are occupied by unrelated residents and the tenant is one of three on the 3rd floor. The petitioner does not dispute this claim, nor do they claim the subject premises are a legal unit. Given the respondent’s undisputed allegations and petitioner’s ‘attic’ designation, the premises would be a de facto multiple dwelling containing illegal units. As such, the petitioner would be prohibited from collecting rent for illegal units violating the Multiple Dwelling Law. It is well established that a landlord is precluded from collecting rent where they have failed to register the premises as a multiple dwelling or where it violates the Certificate of Occupancy. Harris v. Corbin, 92 Misc2d 480, 400 NYS2d 309; MDL 325(2). While an owner of an unregistered multiple dwelling may maintain a holdover proceeding and recover possession in such a proceeding where the ground for recovery is not rent-based, no ancillary money judgment may be sought or awarded. Czerwinski v. Hayes, 8 Misc3d 89, 799 NYS2d 349, NY Slip Op 25121. The Court cannot order or sanction the rent/use and occupancy payment for an illegal space, nor will it support an application for such. Therefore, it will not stay the proceeding to assist in obtaining payment for an illegal space because, in these circumstances, there is no legal obligation to pay rent, as is required by the statute. Accordingly, the petitioner’s motion to vacate the ERAP stay is GRANTED, and the case is restored to the Court’s calendar, which allows the Court to adjudicate the remaining pending motions. Respondent’s cross-motion to dismiss seeks dismissal under CPLR 3211 (a)(7) primarily due to the petitioner’s alleged failure to adequately describe the premises by §741(3), which in turn would make the corresponding termination notice defective. The dispute arises from correctly expressing the upper floor of the premises where the respondent resides. The petitioner describes it as an ‘Attic” space, while the respondent describes it as the ‘Third Floor.’ Dismissal for this defense is denied without prejudice since neither party submitted any independent evidence regarding the agreed-upon designation for this space or how it was commonly designated by other sources, such as the United States Postal Service. This is an issue of fact better reserved for trial. Respondent also alleges the Court lacks personal jurisdiction because the petitioner has not yet served the Petition and Notice of Petition, nor have they filed an Affidavit of Service attesting to service of such. In response to this claim, the petitioner files a cross-motion alleging the respondent was personally served on September 1, 2021 and seeks an Order deeming the Affidavit of Service timely filed, nunc pro tunc. They allege the Affidavit was not filed due to law office error. They include affidavits from the process server and the prior attorney attesting to proper service. Respondent asserts that even if a late filing is allowed, service is defective on its face because the case was first noticed to be heard on January 7, 2023, which is far out of the statutory requirement of service of 15 days before the case is noticed to be heard. A summary proceeding is a special proceeding and “governed entirely by statute…and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction.” Berkeley Assoc. Co. v. Di Nolfi, 122 AD2d 703, 505 NYS2d 630. The Second Department does take a practical approach in situations such as failure to timely file, considering it a technical defect if there is no prejudice to any party. Zot Inc. v. Watson, NYLJ 7/30/08, p 29, col 1. This approach looks at the statute’s purpose to ensure that the respondent’s time to answer is not compromised. In the circumstances here, there has been an extensive delay in seeking leave to file the Affidavit, almost two years. That fact significantly bolsters the respondent’s claim that perhaps they were never served with the papers and possibly were not given a timely opportunity to file an answer. That has stretched the safeguards of the statute way beyond the comfort of this Court. Additionally, even if there was proper service, the petitioner did not address the untimeliness of it given the case was first calendared to be heard in January 2022 (a full four months after alleged service), which is a significant violation of RPAPL §733(1). The statute’s requirements were not discarded despite pandemic delays; this case does not appear to have been unusually delayed. Accordingly, for these reasons, the respondent’s motion is GRANTED to the extent the proceeding is dismissed without prejudice. This constitutes the Decision and Order of the Court. Dated: August 27, 2023
