Answering any question about whether Unit 3B is subject to rent regulation, either now or in some imaginary future in which 78 Reade Street obtains a residential certificate of occupancy, is purely advisory. Although it made sense for the lower courts to consider Unit 3B's rent regulatory status because Mr. Locatelli's rent overcharge claim was at issue, we dismissed Mr. Locatelli's application for leave to appeal his rent overcharge claim (36 N.Y.3d 1105 [2021]), and [*19][*20]Aurora has not sought any monetary remedy from Mr. Locatelli. In fact, before our Court, Aurora admitted it cannot legally collect rent for any unit at 78 Reade Street, including Mr. Locatelli's, until it complies with the Loft Law, a result dictated by our decision in Chazon v Maugenest (19 N.Y.3d 410 [2011]). Thus, the only question for our Court to decide on this appeal is whether Aurora can evict Mr. Locatelli, and the Loft Law provides the answer to that question in full. There is no need to consult any other statutory framework.

Doris Ling-Cohan (dissenting opinion): I respectfully dissent and vote to reverse and dismiss. The tenant's cross-motion for summary judgment of dismissal should be granted and the landlord's motion for leave to conduct discovery deemed moot, as petitioner is prohibited from collecting rent in this residential nonpayment proceeding, as a matter of law, pursuant to the rent forfeiture provisions of the Multiple Dwelling Law (MDL)(see MDL §§ 301 [1]; 302 [1]; 325 [2]; Chazon, LLC v Maugenest, 19 NY3d 410 [2012]). Notwithstanding that petitioner-landlord is a "net lessee" of one floor of the subject six-story building, petitioner-landlord is an "owner", as specifically defined by the plain language of MDL § 4 (44) and, thus, precluded from collecting rent, as there is no dispute that the subject building is a multiple dwelling, lacking a valid certificate of occupancy for residential use and a multiple dwelling registration (see MDL §§ 302 [1] [b]; 325 [2]).

Under MDL § 302(1)(b), where a multiple dwelling is occupied in violation of the requirement to maintain a proper C of O, "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." Citing to Chazon, LLC v Maugenest (19 N.Y.3d 410, 948 N.Y.S.2d 571, 971 N.E.2d 852 [2012]), Matter of GVS Props LLC v Vargas (172 A.D.3d 466, 100 N.Y.S.3d 230 [1st Dep't 2019]), Matter of 49 Bleecker, Inc v Gatien (157 A.D.3d 619, 69 N.Y.S.3d 863 [1st Dep't 2018]), W 48th Holdings LLC v Eliyahu (64 Misc.3d 133 [A], 116 N.Y.S.3d 843 [App Term 1st Dep't 2019]), and caselaw from lower courts, Respondent argues that this nonpayment proceeding should be dismissed because the DOB violation reports reflect that Petitioner illegally altered the building, created additional rooms on the third, fourth and sixth floors after April 18, 1929, and did not secure a C of O to reflect those alterations.

The discussion of rent in § 286 addresses what rents an owner may collect assuming the owner is permitted to collect rent. This conclusion is supported by the decision of the New York Court of Appeals in Chazon LLC v. Maugenest , 19 N.Y.3d 410, 948 N.Y.S.2d 571, 971 N.E.2d 852 (2012). In that decision, the Court found that statutory tenants under the Loft Law could not be evicted based on non-payment of rent where the owner was not in compliance with the Loft Laws and had not received an extension of time to come into compliance.

"While judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives" ( Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53 [internal quotation marks omitted]; seeMatter of Cohen v. State of New York, 2 A.D.3d 522, 525, 770 N.Y.S.2d 361 ). Section 301 of the Multiple Dwelling Law prohibits the occupancy of a multiple dwelling in whole or in part until the issuance of a residential certificate of occupancy (see Multiple Dwelling Law § 301 ; Chazon, LLC v. Maugenest, 19 N.Y.3d 410, 413, 948 N.Y.S.2d 571, 971 N.E.2d 852 ). The Loft Law (Multiple Dwelling Law art 7–C) provides an exception thereto by permitting residential use in interim multiple dwellings prior to the issuance of a residential certificate of occupancy (see Multiple Dwelling Law § 283 ). "Until the Legislature enacted the Loft Law ... the residential occupancy of lofts was illegal pure and simple: The tenants had no right to be there, and the landlords had no right to collect rent" ( Chazon, LLC v. Maugenest, 19 N.Y.3d at 413, 948 N.Y.S.2d 571, 971 N.E.2d 852 ).

Notwithstanding that the building was constructed prior to the requirement for obtaining a certificate of occupancy, landlord's subdivision of two apartments into four units constituted substantial alterations which require the building to have a certificate of occupancy (see Multiple Dwelling Law [MDL] § 301[1] ; 208 Himrod St., LLC v. Irizarry , 42 Misc 3d 145[A], 2014 NY Slip Op 50344[U] [App Term 2d Dept, 2nd, 11th & 13th Jud Dists 2014] ). If a dwelling or structure is "occupied in whole or in part for human habitation in violation of [ MDL § 301 ] ... [n]o rent shall be recovered by the owner of such premises ... and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent" ( MDL § 302[1][a][b] ; seeChazon, LLC v. Maugenest , 19 NY3d 410, 415 [2012] ; Matter of GVS Props. LLC v. Vargas , ––– AD3d ––––, 2019 NY Slip Op 03549 [1st Dept 2019] ; Matter of 49 Bleecker, Inc. v. Gatien , 157 AD3d 619 [2018] ). This is such a proceeding and it is barred, even if tenant's apartment was not one of the newly created apartments.

Inasmuch as the building as presently configured varies substantially from what the certificate of occupancy permits and that the health and safety of all building residents is affected, landlord is barred from collecting rent for the entire building. The command of the Multiple Dwelling Law "is quite clear" ( Chazon, LLC v. Maugenest , 19 NY3d 410, 415 [2012] ). If a dwelling or structure is "occupied in whole or in part for human habitation" without a conforming certificate of occupancy, "[n]o rent shall be recovered by the owner of such premises ... and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent" ( MDL § 302[1][b] ). "If that is an undesirable result, the problem is one to be addressed by the Legislature" ( Chazon, 19 NY3d at 417 )

spite plaintiff's contentions to the contrary, the court properly denied its request to amend the third amended complaint, pursuant to CPLR 3025 (c), to include damages incurred from November 2021 to April 2022, without prejudice, since there remain triable issues of fact as to whether the proposed amendment is palpably insufficient or completely devoid of merit under MDL § § 301 and 302, as explained in the October 24, 2022 decision (see DiMauro v Metropolitan Suburban Bus Authority, 105 A.D.2d 236, 240 [2d Dept 1984] [where the court held that the same legal standard applies to both a motion seeking amendment of pleadings to conform to the evidence pursuant to CPLR 3025 [c] and a motion seeking amendment of pleadings generally pursuant to CPLR 3025 [b]; see also Gioio v Ching Fu Lin, 173 A.D.3d 982 [2d Dept. 2019]). Plaintiff's argument that MDL § 302 does not preclude recovery of rent based upon its failure to conform to the last issued C of O is unavailing, given Chazon, LLC v Maugenest (19 N.Y.3d 410 [2012]), where the court held that a landlord is barred from collecting rent from the entire premises under MDL § 302 during any period where the premises lacked a valid C of O or failed to conform to the last issued C of O (see Chazon, LLC v Maugenest, 19 N.Y.3d at 416; see also MDL § 302 (1) (b); 208 Himrod St., LLC v Irizarry, 42 Misc.3d 145 [A], 2014 NY Slip Op 50344 [U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; GVS Props. LLC v Vargas, 59 Mise 3d 128 [A], 2018 NY Slip Op 50396 [U] [App Term 1st Dept. 2018]). The tenants have raised seemingly consequential issues of fact with regard to their claims that the configuration of the apartments do not conform to the plans on file with the DOB and the Certificate of Occupancy.

An owner unable to meet the deadlines is entitled to an extension of time if that owner demonstrates to the Loft Board that it has made good faith efforts to comply (see MDL 284 [1] [vii]). Until the certificate of occupancy is obtained, the rents in interim multiple dwellings are regulated, and the tenants are protected against eviction for nonpayment (see MDL 286), while the owners, as long as they are in compliance with the Loft Law, are relieved from MDL 302's prohibition against collecting rent or seeking eviction for nonpayment (MDL 285 [1]). In Chazon, LLC v Maugenest (19 NY3d 410 [2012]), the Court of Appeals stated that in the absence of compliance with the timetables set forth by Multiple Dwelling Law § 284 or the granting of an extension of the relevant deadlines, "the law's command is quite clear: 'No rent shall be recovered by the owner of such premises . . . and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.' Those are the words of Multiple Dwelling Law § 302 (1) (b), and Multiple Dwelling Law § 285 (1) makes an exception only for a landlord who is 'in compliance with' the Loft Law" (Chazon, LLC, 19 NY3d at 415).

Defendant further contends that the cause of action for use and occupancy is barred because there is no residential certificate of occupancy. The bar on claims for rent and use and occupancy where there is no residential certificate of occupancy arise from the requirements of Multiple Dwelling Law §§ 301 and 302 (seeChazon, LLC v Maugenest, 19 NY3d 410, 414-415 [2012]; Barrett Japaning, Inc. v Bialobroda, 190 AD3d 544 [1st Dept 2021]; Caldwell v American Package Co., Inc., 57 AD3d 15, 25-26 [2d Dept 2008]). These sections, and indeed, the Multiple Dwelling Law itself, however, only apply to multiple dwellings (see Multiple Dwelling Law §§ 8 and 301 [1]).