Opinion
No. 84505/13.
07-14-2014
742 REALTY LLC, Petitioner, v. Stephanie L. ZIMMER, Respondent.
Law Office of Benjamin Z. Epstein P.C., Brooklyn, for Petitioner. South Brooklyn Legal Services, Brooklyn, for Respondent.
Law Office of Benjamin Z. Epstein P.C., Brooklyn, for Petitioner.
South Brooklyn Legal Services, Brooklyn, for Respondent.
Opinion
GARY MARTON, J.
After considering the testimony and the other evidence at the trial of this nonpayment proceeding, the court makes the following findings of fact, reaches the following conclusions of law, and grants respondent a judgment dismissing this proceeding.
The court finds that petitioner is the landlord, that respondent is the tenant, and that the premises at issue is a residential duplex apartment located in a building of four stories over a cellar. The court finds that through January 31, 2014 the accrued rent arrears total $6,828.90. The court finds that the premises consists of a unit on the first floor, a unit in the cellar, and an interior stairwell that joins the two. The court finds that the unit in the cellar includes one bedroom and a bathroom, i.e., a room with a toilet, a sink, and a bathtub.
The court finds that petitioner sank the interior stairwell from the first floor unit through to the cellar after the certificate of occupancy had issued, but before respondent became a tenant, i.e., the premises was configured as a duplex when petitioner rented it in 2008 to respondent. The court finds that the certificate of occupancy for the building permits the use of the first floor for “stores and 2 dwellings,” but that it limits the use of the cellar to “boiler and storage.” In bold capitals, the certificate of occupancy provides: “No changes of use or occupancy shall be made unless a new amended certificate of occupancy is obtained.” Petitioner does not claim that it obtained a new certificate of occupancy.
The City of New York's Department of Housing Preservation and Development (“HPD”) inspected the premises on February 5, 2014. HPD's report of its inspection shows five violations of the housing maintenance code. Two are pertinent here. One is set out as follows: “ § 27–2081 adm code discontinue use of rooms for living, disconnect plumbing fixtures and properly seal pipe connections .. in the entire cellar apt 1 r.” The other violation is: “ § 300 m/d law file plans and application and legalize the following alteration or restore to the legal condition existing prior to the making of said alteration, opening created at floor spiral stairs install creating a duplex apt with the 1 sty. in the entire apartment located at cellar apt 1 r.”
Roughly two years earlier the City of New York's Department of Buildings (“DOB”) inspected the premises and issued a Notice of Violation No. 34953484J. Dated May 14, 2012 in pertinent part the Notice states: “work without permit: work noted, in the cellar location at the rear of the building of the 1st floor apts. In the cellar installed a toilet, basin, shower stall....” In the section of the Notice following the pre-printed word “Remedy” the Notice provides: “obtain permit or restore to prior legal condition .” The court notes that a hearing was held at the City of New York's Environmental Control Board (“ECB”) on July 2, 2012 and that by a decision and order dated July 12, 2012 ECB sustained the violation.
The court finds that the premises as configured by petitioner varies substantially from what the certificate of occupancy permits. As a consequence, the Multiple Dwelling Law (“MDL”) bars petitioner from collecting rent. MDL § 301 provides that no multiple dwelling may be occupied unless a certificate of occupancy has been issued and MDL § 302 goes on to provide that no rent may be collected during any period when there is an occupancy at odds with the certificate of occupancy; in pertinent part, MDL § 302(1)(b) provides: “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.”
“The public policy intended to be served by the Multiple Dwelling Law § 302 was explicitly identified by the Legislature when it declared ... that the establishment and maintenance of proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards are essential to the public welfare' (Multiple Dwelling Law § 2 ).' The Legislature further decided to cast upon the owner the obligation to ensure compliance by expressly depriving the owner of any entitlement to rent or other remuneration in the absence of a certificate of occupancy.” Caldwell v. American Package Company, Inc., 57 AD3d 15, 26 (2nd Dep't 2008). See also Chazon, LLC v. Maugenest, 19 NY3d 410, 416 (2012) where the court, addressing a similar situation and imposing a bar on the collection of rent, opined “[i]f that is an undesirable result, the problem is one to be addressed by the Legislature.”
Accordingly, the court grants the relief set out above. The court will mail copies of this decision and order to the parties, who are requested to retrieve their exhibits by July 31, 2014.