Summary
requiring defendant to surrender cellar apartment, after landlord: received violation, hired engineer to cure violation, filed application with DOB to legalize space, and found out application was denied pursuant to MDL § 34, leaving landlord exposed to civil and criminal sanctions
Summary of this case from Hart-Zafra v. SinghOpinion
May 12, 1987
Appeal from the Supreme Court, New York County (Martin Evans, J.).
Plaintiff is the owner of a multiple dwelling at 333 West 76th Street in Manhattan. The certificate of occupancy (CO) permits residential use of the first through fifth floors of the building, but permits use of the basement area only for "[b]oiler room, storage and office of building." In March 1982, the plaintiff rented certain space in the basement area to defendant for one year by written lease providing that the space was to be used by defendant for storage of business machines and for no other purpose. The lease was thereafter extended for a one-year period ending March 31, 1984.
In March 1984, plaintiff commenced a summary proceeding in Civil Court for nonpayment of rent for the months of February and March 1984. On September 25, 1984, Judge John R. Cannizzaro found after trial that plaintiff had permitted defendant to occupy the basement area for residential purposes, and so dismissed plaintiff's petition on constraint of the prohibition against a landlord's recovery of rent for an illegally occupied apartment set forth in Multiple Dwelling Law § 302. By order entered December 12, 1985, the Appellate Term affirmed the Civil Court's judgment dismissing the plaintiff's petition.
On September 4, 1984, the New York City Department of Housing Preservation and Development issued a violation under section D26-34.01 of the Administrative Code of the City of New York (recodified § 27-2081) which ordered plaintiff to "discontinue use of rooms for living purposes room front west cellar commercial storage used for living." Plaintiff thereupon hired a licensed professional engineer to cure the violation, and on January 2, 1985 an altered building application was filed with the Department of Buildings to legalize the basement space occupied by defendant, for use as a class A apartment. That application was denied based on several provisions of Multiple Dwelling Law § 34, at least one of which, the requirement that the ceilings of a basement apartment be at least 4 feet, 6 inches above the curb level, cannot possibly be resolved. Reconsideration was requested to waive the objection to accommodate the defendant tenant, but that too was denied. Thus, defendant has continued to occupy the basement area for residential purposes in violation of his lease and pertinent provisions of the Multiple Dwelling Law, without paying rent or use and occupancy, since February of 1984, and is leaving the plaintiff landlord exposed to civil and criminal sanctions for failure to cure the violation so long as the defendant continues his illegal residential use of the basement space.
The instant proceeding was commenced in June 1986 by order to show cause and verified complaint setting forth in detail the above-mentioned facts, and seeking a declaration of the rights of the parties requiring that the defendant pay to plaintiff the reasonable value of use and occupancy, that he cease and desist from using the basement space for residential purposes, and that he surrender possession of the premises to the plaintiff. Defendant cross-moved to dismiss the action on the grounds of res judicata, claiming a perpetual right to renewal leases under the rent stabilization laws, and also urging that the plaintiff is not entitled to collect rent or use and occupancy because the CO prohibits the residential use to which defendant claims perpetual entitlement.
Clearly, this bizarre "Catch-22" situation is unjust, and cannot be permitted to continue. (See, Chatsworth 72nd St. Corp. v. Rigai, 71 Misc.2d 647 [Civ Ct, N Y County], affd 74 Misc.2d 298 [App Term], affd 43 A.D.2d 685, affd on opn of Shainswit, J. 35 N.Y.2d 984.) As Judge Shainswit observed in that case ( 71 Misc. 2 d, at 651-652):
"The sanctions imposed by [Multiple Dwelling Law] section 302 presuppose a certificate of occupancy denied because of volitional illegality. They were designed as a tool to stimulate the conversion of unsafe and substandard dwellings into proper and legal ones * * *
"It has long been the rule that the courts will not adhere even to the apparent letter of a statute, where doing so would defeat the manifest purpose of that statute, particularly where such a construction would work either injustice or an absurdity." (Emphasis in original.)
Since the defendant's last written lease expired March 31, 1984, and since he clearly cannot be permitted to occupy the premises as his residence, judgment should be entered requiring that defendant surrender the premises to the landlord. In view of the Civil Court's determination in the prior proceeding that plaintiff had consented to defendant's use of the premises as his residence, a finding binding on plaintiff as the law of the case, plaintiff's demand for use and occupancy should be denied.
Concur — Sandler, J.P., Carro, Asch, Rosenberger and Ellerin, JJ.