Opinion
22154
June 7, 2002
APPEAL from an order of the City Court of the City of Yonkers, Westchester County (Robert C. Cerrato, J.), entered April 6, 2001, deemed an appeal from a final judgment entered May 1, 2001, awarding petitioner landlord possession in a nonpayment summary proceeding.
Westchester/Putnam Legal Services, Yonkers (Barbara Finkelstein, Kamber L. Brisbane and Judith B. Studebaker of counsel), for appellant.
No appearance for respondent.
OPINION OF THE COURT
MEMORANDUM.
Final judgment reversed without costs and matter remanded to the court below for further proceedings.
Following landlord's concession that he lacked a proper certificate of occupancy for the subject premises, certified for single-family occupancy but operated as a de facto multiple dwelling (Multiple Residence Law §§ 4[4], 302[1]), the court denied landlord a money judgment, citingMultiple Dwelling Law §§ 302(1)(b) and 325(2), but granted him possession. However, the Multiple Dwelling Law does not apply to Yonkers (see, Multiple Dwelling Law § 3[1]), and, thus, the absence of such a certificate does not preclude the commencement of a nonpayment proceeding (e.g., Brown v. Williams, 132 Misc.2d 438, 439). To the extent that Anilesh v. Williams (NYLJ, Nov. 15, 1995) and Bartolomeo v. Runco ( 162 Misc.2d 485) hold to the contrary, they should not be followed.
In any event, absent a default in rent, the court could not award landlord possession in a nonpayment proceeding (RPAPL 711[2]); Papaleo v Gentle, NYLJ, Oct. 9, 2001 [App Term, 9th 10th Jud Dists]). If, as tenant alleges, the court implicitly converted the nonpayment proceeding to a holdover proceeding, this also was inappropriate under the circumstances presented, which include the absence of a termination notice. Consent to such a conversion will not be inferred from these unrepresented litigants' silence (Luciano v. Pironti, NYLJ, May 30, 2001 [App Term, 9th 10th Jud Dists]).
Floyd, P.J. and Doyle, J., concur.
Colabella, J., taking no part.