Opinion
No. 571371/23
03-25-2024
East Harlem MEC Parcel C, L.P., Petitioner-Landlord-Appellant, v. Reggie Smalls, Respondent-Tenant-Respondent, and John Doe and Jane Doe, Respondents-Tenants-Undertenants.
Unpublished Opinion
PRESENT: Tisch, J.P., James, Perez, JJ.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Frances A. Ortiz, J.), dated September 14, 2023, which granted tenant's motion to dismiss the nonpayment petition pursuant to
CPLR 3211(a)(1) and (7).
PER CURIAM.
Order (Frances A. Ortiz, J.), dated September 14, 2023, affirmed, with $10 costs.
Civil Court properly granted tenant's motion to dismiss the nonpayment petition. The evidentiary submissions conclusively demonstrate, and it is essentially undisputed, that after the 2011 certificate of occupancy was issued, the subject building had undergone a "type 1" alteration, including the addition of an eating and drinking establishment on the first floor; and that temporary certificates of occupancy issued between 2013 and 2015 had all expired and no new certificate of occupancy had been issued. Because the building lacks a valid certificate of occupancy, landlord is precluded from seeking to recover rent from tenant (see Multiple Dwelling Law §§ 301, 302[1][a],[b]; Chazon, LLC v Maugenest, 19 N.Y.3d 410, 415 [2012]; Barrett Japaning, Inc. v Bialobroda, 190 A.D.3d 544 [2021]; Matter of 49 Bleecker, Inc. v Gatien, 157 A.D.3d 619 [2018]), even though tenant's apartment may not have been affected by the alterations (see Ormonde Equities LLC v Jacoby, 81 Misc.3d 137 [A], 2023 NY Slip Op 51416[U] [App Term, 1st Dept 2023]; West 48th Holdings LLC v Eliyahu, 64 Misc.3d 133 [A], 2019 NY Slip Op 51066[U] [App Term, 1st Dept 2019]).