Opinion
December 2, 1993
Appeal from the Supreme Court, New York County (Walter M. Schackman, J.).
According to the uncontroverted evidence submitted by the moving defendants, the units in question were converted to residential use in 1981. The owner's blanket denial of knowledge of the conversions is insufficient to rebut the detailed affidavits submitted by the tenants demonstrating not only knowledge of and acquiescence on the part of plaintiff's principal in the residential use of the premises, but also his active encouragement and participation in the renovation process. This is precisely the type of situation addressed by the Legislature in article 7-C of the Multiple Dwelling Law, and although none of the parties to the instant cross appeals argue that the statute is directly applicable, the essentially unrebutted allegations of the landlord's complicity and the lack of evidence upon the record to demonstrate any effort to comply with registration and certificate of occupancy requirements, or other statutory or regulatory provisions, preclude recovery for use and occupancy at this juncture (see, Hornfeld v Gaare, 130 A.D.2d 398, 400). In light of the conflicting nature of the affidavits, however, and given the need to assess issues of credibility, summary judgment to defendant-cross-appellant properly was denied.
Concur — Sullivan, J.P., Carro, Rosenberger, Ross and Asch, JJ.