Opinion
570130/04.
Decided August 9, 2005.
In consolidated appeals, plaintiff appeals from two judgments of the Civil Court of the City of New York, Bronx County, entered on or about November 3, 2003 after a nonjury trial (Francis M. Alessandro, J.) in favor of defendant dismissing the complaints.
Judgments entered on or about November 3, 2003 (Francis M. Alessandro, J.) affirmed, with $25 costs.
PRESENT: HON. WILLIAM J. DAVIS, J.P. HON. PHYLLIS GANGEL-JACOB HON. MARTIN SCHOENFELD, Justices.
Plaintiff-tenant has demonstrated no basis for a return of the rents previously paid by it in connection with its commercial leasehold. "In the case of a commercial lease where the landlord has made no covenant to obtain a certificate of occupancy and the tenant's right to possession is wholly undisturbed, the mere absence of a certificate of occupancy does not relieve the tenant of its fundamental obligation to pay rent" ( Silver v. Moe's Pizza, 121 AD2d 376, 378). To the extent that Multiple Dwelling Law § 302 is applicable, it may not be used as a sword to recoup rents already paid ( Baer v. Gotham Craftsman Limited, 154 Misc 2d 490, 492-493).
We have considered and rejected tenant's remaining argument.
This constitutes the decision and order of the court.