Recitation, as required by CPLR §2219(a), of the papers considered in review of respondent’s motion seeking summary judgment pursuant to CPLR 3212 and ensuing opposition and reply. Papers Numbered Motion 1 Opposition 2 Reply 3 DECISION/ORDER Upon the foregoing cited papers, the Decision and Order on this motions is as follows: Petitioner commenced this non-payment proceeding in April 2023 seeking rental arrears at $2,600 per month from August 2022 through February2023. Respondent Noelia Gonzalez appeared and asserted the following affirmative defenses : (1) Landlord owes respondent money, rent overcharge, rent abatement ; (2) respondent paid for repairs or services;(3) warranty of habitability (4) general denial; (5) harassment and counterclaim for harassment and repairs. The premises are subject to rent stabilization. Respondent appears with counsel and seeks summary judgment pursuant to CPLR 3212 in that there is no lease agreement in effect at the time the case was commenced and therefore petitioner may not maintain a non payment proceeding as it has no standing. Respondent alleges the last lease signed was in 2018. Respondent argues that petitioner currently has no valid certificate of occupancy for the premises and pursuant to MDL 302(1)(b), petitioner cannot collect rent as respondent is living in an illegal duplex with the bottom floor being a cellar. Respondent also argues that the petitioner failed to provide a 30 day rent demand per FDCPA. Petitioner opposed the motion and produced a de regulated lease extension agreement signed November 1, 2022 through October 31, 2024 by both respondents and the petitioner. The court acknowledges that said lease renewal is not the approved rent stabilized lease renewal form mandated by the Rent Stabilization Code. Petitioner further argues that the bottom level of the unit was to be used for storage or recreational space only and that there is no violation of the multiple dwelling law as respondent created the illegality by living on the bottom floor. In reply respondent produces HPD violations issued July 17, 2023, A violation to “file plans and application and legalize the following alteration or restore to the legal condition existing prior to the making of said alteration floor pierced from first story stairs created from apartment 1f to cellar, at cellar.” Another HPD violation “B” issued on July 17, 2023 “discontinue use of rooms for living, disconnect plumbing fixtures and properly seal pipe connection wash basin and water closet at cellar.” Respondent also contends that the lease extension is not a valid lease as it was not written on the approved rent stabilization lease renewal forms, that petitioner was aware of the living conditions in the cellar as the landlord and the super were in the apartment on several occasions. Summary judgement “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing a judgment in favor of any party.” CPLR §3212(b). When a moving partymakes a prima facie showing of entitlement to judgment as a matter of law giving sufficient evidence to eliminate anymaterial issue of fact, summary judgment should be granted. Weingrad v. New York University Medical Center, 64 N.Y. 2d 851, 853 (1985). “Failure to make such a showing requires a denial of the motion, regardless of the motion papers.” Id at 853. Courts have routinely held that where petitioner lacks a certificate of occupancy, the petitioner is barred from collecting rent from the premises. The Court of Appeals is Chazon LLC v. Maugenest, 19 NY3d 410 [2012] found that where a landlord was not in compliance with the loft law requirements, the landlord was barred from collecting rent.. The court found in the absence of compliance, the law’s command is quite clear: “No rent shall be recovered by the owner of such premises…and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.” Those are the words of Multiple Dwelling Law §302 (1) (b). The court went on the reason that if the result of a complete bar to collecting rent is a harsh or undesirable result, the problem is one to be addressed by the Legislature. Prior to holding in Chazon, supra,, the lower courts found circumstances that limited the general application ofMDL §302. Courts looked to whether the C/O violation renders the tenant’s residential occupancy unlawful, or whether arrears sought are only for the illegal units and whether the tenant was not complicate in the existence and maintenance of the illegal unit (See 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 [1st Dept 2005]). In Chazon, supra, the Court of Appeals made it clear that no such limitation was mandated under the law and went on to opine 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…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.’ 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 [1st Dept 2019] (non payment barred even if tenant’s apartment was not one of the newly created apartments.”]; 49 Bleeker, Inc v. Gatien, 157 AD3d 619 [1st Dept 2018](owner of respondents’ dwelling, was precluded from charging respondents rent or other remuneration while the building lacked a certificate of occupancy for residential use; 1165 Fulton Ave HDFC v. Goings, 65 Misc. 3d 1210(A), 119 N.Y.S.3d 9 (N.Y. Civ. Ct. 2019) (dismissing non payment proceeding pursuant to MDL 301 and 302);(Malden v. Wykoff S.P., LLC, 192 AD3d 1002 [2021]; Barrett Japaning, Inc. v. Bialobroda, 190 AD3d 544 [2021]; Matter of GVS Props. LLC v. Vargas, 172 AD3d 466 [2019]; Matter of 49 Bleecker, Inc. v. Gatien, 157 AD3d 619 [2018]; Hart-Zafra v. Singh, 16 AD3d 143 [2005]; Trafalgar Co. v. Malone, 73 Misc. 3d 137(A), 155 N.Y.S.3d 272 (N.Y. App. Term. 2021). The purpose of MDL 302 is to obtain and maintain high quality safe dwellings throughout the city. As petitioner presumably was responsible for installing the stairwell from apartment 1f to the cellar as well as installing sink and bathroom fixtures in unit 1f, the apartment is not in compliance with the certificate of occupancy currently. As such, petitioner cannot maintain this proceeding. No evidence has been presented that respondent’s created the illegal condition such as building the connecting stairwell or failed to prohibit the petitioner from correcting such a condition. Based upon the violations listed by HPD, including the violation for an illegal cellar attached by a stairwell to unit 1F, the petitioner is not in compliance with the certificate of occupancy and cannot maintain this non payment proceeding. Respondent’s motion is granted and the petition is dismissed. The court need not address respondent’s other defenses or claims in the light of the above. Petitioner and respondent are encouraged to work together to remove the violations forthwith. Respondent’s motion to dismiss is granted. This constitutes the decision and order of this court. Dated: November 22, 2022
