Opinion
20345/03.
Decided June 23, 2004.
Plaintiff moves by Order to Show Cause for an Order granting summary judgment and final judgment of possession. Plaintiff also seeks a writ of assistance to remove the defendant from her property, use and occupancy, and to strike defendant's answer. Defendant opposes plaintiff's motion.
Since February 3, 1989, plaintiff is the owner of a two family house located at 1222 East 83rd street, Brooklyn, New York. On July 1, 2000, plaintiff orally agreed to lease the first floor of her home to the defendant at a monthly rental of $600.00. On April 17, 2003, plaintiff served the defendant with a thirty day notice of termination. Plaintiff then commenced this ejectment action by service of a summons and verified complaint filed on June 3, 2003. The action is based on the defendant's alleged nonpayment of rent since January of 2003. Defendant, who appeared pro se, answered the Order to Show Cause and summons and verified complaint by appearing and denying plaintiff's claim of non-payment of rent.
Plaintiff admits in her pleadings that she cannot prosecute the action in the Civil Court of the City of New York because she lacks, and is unable to obtain, a multiple dwelling registration number. She also admits that the rental to the defendant was an illegal use of her two family home as a three family home contrary to its certificate of occupancy. Plaintiff contends in her pleadings that the premises were constructed after February 1, 1947 and are not subject to rent control or rent stabilization.
The court ordered a factual hearing on the issue of nonpayment of rent. The hearing was commenced on December 1, 2003 and rescheduled to January 12, 2004. On the prior date, it was apparent that plaintiff needed the services of a Hebrew interpreter. Although plaintiff's husband was able to testify without an interpreter, he had no personal knowledge on the issue of nonpayment of rent.
On January 12, 2004, at the rescheduled hearing, the parties stipulated that defendant voluntarily surrendered possession of the premises to the plaintiff and returned the key after the recess of the prior proceeding on December 1, 2003. Also undisputed is that defendant has not made rent payment since July of 2003. Defendant explained that he withheld rent payment since June 2003 because the plaintiff's decision to terminate his lease for nonpayment of rent was improper and he would need to save and accumulate funds to pay the expenses of obtaining a new place.
Based on the voluntary surrender of possession, the court dismissed the ejectment action and denied, as moot, all the requests for orders to obtain possession. The only issue remaining was plaintiff's claim of nonpayment of rent since January of 2003 and the request for use and occupancy covering this period.
At the conclusion of the factual hearing, the court finds that plaintiff has failed to establish defendant's nonpayment of rent from January of 2003 through June of 2003. Plaintiff's sole competent evidence was her testimony which was vague and contradictory. Defendant's testimony was clear, unequivocal and persuasive. The court finds that defendant made $600.00 monthly payments to the plaintiff by a combination of checks, cash and money orders.
Multiple Dwelling Law § 4 (7) defines a multiple dwelling as a dwelling occupied as the residence of three or more families living independently of each other ( Mannino v. Fielder, 165 Misc.2d 605 at 608, [N.Y.City Civ.Ct.,1995]). Plaintiff has admitted that she illegally used her two family home as a three family home contrary to its certificate of occupancy. She has also admitted that she lacks and is unable to obtain a multiple dwelling registration number.
Under Multiple Dwelling Law § 325(1), every multiple dwelling must be registered as such and have a multiple dwelling registration on file with the Department of Housing Preservation and Development (HPD). If the owner does not comply with the registration requirement, Multiple Dwelling Law § 325(2) provides that " no rent shall be recovered by the owner of a multiple dwelling who fails to comply with such registration requirements until he complies with such requirements." (Mannino v. Fielder, supra. 165 Misc.2d at 608).
The case law is rather uniform in denying the landlord collection of rent from the tenant of the illegal apartment. An owner's failure to register a premises as a multiple dwelling precludes him from maintaining a summary proceeding predicated upon nonpayment of rent (Matter of Blackgold Realty Corp. v. Milne 69 N.Y. 2d 719). Furthermore, the provisions of Multiple Dwelling Law §§ 301, 302 and 325 and the case law are clear that no rent or use and occupancy can be collected when an owner fails to obtain a proper certificate of occupancy or multiple dwelling registration ( 111 on 11 Realty Corp. v. William Norton et al., 189 Misc.2d 389 at 402 [N.Y.City Civ.Ct. 2001]; see also Jalinos v. Ramkalup, 255 AD2d 293 [2nd Dept 1998]).
The cases permitting landlords to collect rent or use and occupancy generally do so on landlord's proof of substantial conformity to code standards and condition such payment on landlord's actual procurement of the requisite certificate (Yuko Nii v. Brian Quinn 195 Misc.2d 821 at 824, [N.Y.Sup. 2003]; see also Zane v. Keller, 240 AD2d 208, 209 [N.Y.A.D. 1997]).
It is undisputed that at the case at bar, defendant has voluntarily surrendered possession to the plaintiff and that the plaintiff has made no attempt to bring her home in conformity to code. In light of the foregoing, plaintiff's request for use and occupancy for all periods of nonpayment by the defendant must be denied.
At the hearing conducted on January 12, 2004, defendant requested a protective order preventing the plaintiff from obtaining his new address. Plaintiff opposed the request and the court reserved decision. Inasmuch as plaintiff's request for use and occupancy is denied, there is no need to locate the defendant for purposes of enforcement of a judgment. Defendant's request for a protective order is denied as moot.
The foregoing constitutes the decision and order of the court.