Opinion
2012-10-3
455 SECOND AVENUE LLC, Petitioner–Landlord, v. NY SCHOOL OF DOG GROOMING, INC., Respondent–Tenant, “XYZ Corp.”, Respondent–Tenant.
Keith Riemer, Esq., on behalf of Judith M. Brener Esq., for petitioner. Frederick Mehl, Esq., Brooklyn, for respondent.
Keith Riemer, Esq., on behalf of Judith M. Brener Esq., for petitioner. Frederick Mehl, Esq., Brooklyn, for respondent.
MARGARET A. CHAN, J.
Petitioner landlord commenced a summary proceeding against one of its tenants, N.Y. School of Dog Grooming, Inc., the respondent herein, for non-payment of rent. Respondent filed the instant motion to dismiss the petition claiming that no rent is due as there is no proper Certificate of Occupancy (“C of O”) for its premises. Petitioner opposed the motion arguingthat pursuant to the parties' lease, the duty to obtain a C of O appropriate for tenant's use of the premises as a dog grooming school falls on the tenant; not the landlord.
FACTS
The parties entered into a ten-year lease on August 10, 2001, which term was extended on September 8, 2011 for seven (7) additional years with a termination date of August 31, 2018. The petition alleged that respondent defaulted on its monthly rent payments as of July 1, 2011. In 2008, respondent sought to renew its dog grooming educational license. Apparently, a renewal could not be obtained without a proper C of O. The existing C of O for the subject premises was for a multiple dwelling with the basement, which is the subject premises, used as a restaurant. A copy of said C of O showed that it was a temporary one which had long expired in 1949 (Petr's Aff. in Opp., Exh. 2). Respondent requested petitioner to amend the C of O. It also hired an architect to assist in that process. Petitioner's opposition papers included an approved application to the New York City Department of Buildings filed by respondent's architect to convert the premises from a former restaurant to a dog grooming facility. The approval was dated February 1, 2010. Nothing, however, was done since the approval. In 2011, the architect wrote to respondent that he had done all he could to advance the permit process; the remaining work must be done by the landlord, such as hiring a contractor to do the physical alterations.
Neither party addresses the expiration of the temporary C of O.
Petitioner's only argument is that it was incumbent on respondent to do all work or alterations at its own expense in order to acquire a proper C of O. Petitioner points to the lease's boilerplate provisions which bars respondent from using the premises other than the use stated in the C of O, that respondent, at its sole cost and expense, must comply with all laws and regulations, and that respondent had accepted the premises “as is” (Petr Aff. In Opp., p. 3, para. 18). Respondent's argument is strictly that as there is no proper C of O in place, petitioner may not collect rent.
DISCUSSION
Respondent relies on two cases, Ying Lung Corp. v. Medrano, 123 Misc.2d 1074, 475 N.Y.S.2d 772 (Civ. Ct. N.Y. Cty.1984), and Elizabeth Broome Realty Corp. v. China Printing Co., Inc., 157 Misc.2d 572, 598 N.Y.S.2d 138 (Civ. Ct. N.Y. Cty.1993), for the proposition that a commercial tenant may invoke Multiple Dwelling Law (“MDL”) Section 302 as a defense for non-payment of rent.
Section 302(1) of the MDL provides:
a. If any dwelling or structure be occupied in whole or in part for human habitation in violation of section three hundred one, during such unlawful occupation ...
b. No rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.
Section 301 of the MDL, referred to above in paragraph (a), requires the issuance of a C of O before a multiple dwelling may be “occupied in whole or in part”.
In Ying Lung Corp., focusing on the word “structure” and “human habitation” in MDL § 302(1), the court opined that “[t]he statutory language making the strong penalty for violation applicable to a ‘structure’ (not just the residential units therein) if only a portion thereof is occupied for ‘human habitation’, necessarily implies that nonresidential occupants are entitled to assert the defense provided in the section where the landlord fails to procure a certificate of occupancy” ( Ying Lung Corp., 123 Misc.2d at 1075, 475 N.Y.S.2d 772). The court in Elizabeth Broome Realty Corp., reasoned that MDL § 302(1) extended to commercial tenants because “the statute contains no words of limitation restricting its application to residential premises, or limiting the availability of this defense to residential tenants” ( Elizabeth Broome Realty Corp., 157 Misc.2d at 574, 598 N.Y.S.2d 138).
However, as appellate precedents have upheld landlords' right to collect rent in a summary proceedings against commercial tenants when a C of O is not in place ( see e.g., Phillips & Huyler Assoc. v. Flynn, 225 A.D.2d 475, 640 N.Y.S.2d 26 [App. Div. 1st Dept.1996] [use of premises in violation of C of O did not prevent landlord from collecting rent]; Silver v. Moe's Pizza, 121 A.D.2d 376, 503 N.Y.S.2d 86 [App. Div. 2d Dept.1986] [where landlord made no promise to get C of O on lease, the absence of a C of O did not relieve tenant from paying rent]; Only Properties, LLC v. Cavlak, 30 Misc.3d 129(A), 2010 WL 5479867 [App. Term, 1st Dept.2010] [nonconformity of the C of O and Department of Health violations did not relieve tenant's rent obligations even if alterations to premises was done by landlord on behest and behalf of tenant]; cf. Chazon, LLC v. Maugenest, 19 N.Y.3d 410, 948 N.Y.S.2d 571, 971 N.E.2d 852 [2012] [the Court of Appeals recently made clear that MDL § 302(1)(b) bars special proceedings against residential tenant to recover rent or for possession of premises for nonpayment of rent] ), a contrary conclusion is reached in this case.
Further, as MDL § 302(1) is a derogation of common law, the definitions thereof must be strictly construed ( see Phillips & Huyler Assoc. v. Flynn, 225 A.D.2d 475, 640 N.Y.S.2d 26). Therefore, it would be counter to the principals of strict construction to allow flexibility in applying the statute other than as specified in the statute. Strict construction of the statute is facilitated by adhering to the definitions as provided by section 4 of the Multiple Dwelling Law. The pertinent relevant terms are as follow: “[a] ‘dwelling’ is any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings” (MDL § 4[4] ); and a “structure” is “a building or construction of any kind” (MDL § 4[23] ). As so defined, MDL § 302 evinces a limited application to residential tenants, tenants whose habitation or where they live, reside or sleep, are in a building or construction.
In concluding that MDL § 302 is inapplicable in this case, respondent's motion to dismiss the petition is denied.
This constitutes the decision and order of the court.