Order (Marcia J. Sikowitz, J.), dated March 2, 2021, insofar as appealed from, affirmed, with $10 costs. In view of Civil Court's unchallenged determination that the two apartments occupied by tenant had been previously illegally altered by landlord or its predecessor, and were occupied without a valid certificate of occupancy, landlord was precluded from recovering rent or use and occupancy (see Multiple Dwelling Law [MDL] ยงยง 301[1], 302; Chazon, LLC v Maugenest, 19 N.Y.3d 410 [2012]; Malden v Wykoff S.P., LLC, 192 A.D.3d 1002 [2021]; Barrett Japaning, Inc. v Bialobroda, 190 A.D.3d 544 [2021]; Matter of GVS Props. LLC v Vargas, 172 A.D.3d 466 [2019]; Matter of 49 Bleecker, Inc. v Gatien, 157 A.D.3d 619 [2018]; Hart-Zafra v Singh, 16 A.D.3d 143 [2005]). Thus, the use and occupancy deposited into court by tenant pursuant to RPAPL 745(2), as per Civil Court's January 2018 orders, was properly directed to be returned to tenant (see RPAPL 745[2][d][iii]).
Order (Marcia J. Sikowitz, J.), dated March 2, 2021, insofar as appealed from, affirmed, with $10 costs. In view of Civil Court's unchallenged determination that the two apartments occupied by tenant had been previously illegally altered by landlord or its predecessor, and were occupied without a valid certificate of occupancy, landlord was precluded from recovering rent or use and occupancy (see Multiple Dwelling Law [MDL] ยงยง 301[1], 302 ; Chazon, LLC v Maugenest , 19 NY3d 410 [2012] ; Malden v Wykoff S.P., LLC, 192 AD3d 1002 [2021] ; Barrett Japaning, Inc. v Bialobroda , 190 AD3d 544 [2021] ; Matter ofGVS Props. LLC v Vargas , 172 AD3d 466 [2019] ; Matter of49 Bleecker, Inc. v Gatien , 157 AD3d 619 [2018] ; Hart-Zafra v Singh , 16 AD3d 143 [2005] ).
While this is relief which is possible to grant, the court finds that the defendant has failed to make a prima facie case for the relief requested in the motion. Specifically, he has not provided any evidence that he has actually filed an application under the Loft Law with the New York City Loft Board (Malden v Wykoff S.P., 192 A.D.3d 1002, 1006 [2d Dept 2021]). Nor has he offered any evidence that he has occupied the unit as his residence during any of the statutory window periods.
While Owner has demonstrated its right to eject Calise from the attic and take possession of Unit 4R so that it can renovate and turn Unit 4R into a studio apartment in accordance with the Building's CO, as a matter of equity, Calise is statutorily entitled to the return of her monthly rental income which was improperly charged for Unit 4R since her tenancy under the 2009 lease agreement for Unit 4R with Owner, especially since Owner was aware that Unit 4R did not conform to the Building's CO when it acquired the Building (Malden v Wykoff S.P., LLC, 192 A.D.3d 1002, 1005 [2021] [holding that "(a)n owner of a de facto multiple dwelling who fails to obtain a proper certificate of occupancy or comply with the registration requirements of the Multiple Dwelling Law cannot recover rent or use and occupancy"]). No other measure of damages would be equitable under the circumstances presented here.
While Owner has demonstrated its right to eject Oseid from the attic and take possession of Unit 4F, as a matter of equity, Oseid is statutorily entitled to the return of his monthly rent, especially since Owner was aware that Unit 4F did not conform to the Building's CO when it acquired the Building (Malden v Wykoff S.P., LLC, 192 A.D.3d 1002, 1005 [2021] [holding that "(a)n owner of a de facto multiple dwelling who fails to obtain a proper certificate of occupancy or comply with the registration requirements of the Multiple Dwelling Law cannot recover rent or use and occupancy"]). No other measure of damages would be equitable under the circumstances presented here.
4 Misc.3d 133 [A], 2019 NY Slip Op. 51066[U] [App Term, 1st Dept 2019] ["If a dwelling or structure is 'occupied in whole or in part for human habitation in violation of [MDL 301] [n] rent shall be recovered by the owner of such premises and no action or special proceeding shall be maintained therefore, or for possession of said premises for nonpayment such rent.' GVS Properties LLC v. Vargas, 59 Misc.3d 128 [A], 2018 NY Slip Op. 50396[U] [App Term, 1st Dept 2016] aff'd 172 A.D.3d 466 [1st Dept 2019] (non payment barred even if tenant's apartment was not one of the newly created apartments."]; 49 Bleeker, Inc v Gatien, 157 A.D.3d 619 [1st Dept 2018](owner of respondents' dwelling, was precluded from charging respondents rent or other remuneration while the building lacked a certificate of occupancy for residential use; 1165 Fulton Ave HDFC v. Goings, 65 Misc.3d 1210 (A), 119 N.Y.S.3d 9 (NY Civ. Ct. 2019) (dismissing non payment proceeding pursuant to MDL 301 and 302);(Malden v Wykoff S.P., LLC, 192 A.D.3d 1002 [2021]; Barrett Japaning, Inc. v Bialobroda, 190 A.D.3d 544 [2021]; Matter of GVS Props. LLC v Vargas, 172 A.D.3d 466 [2019]; Matter of 49 Bleecker, Inc. v Gatien, 157 A.D.3d 619 [2018]; Hart-Zafra v Singh, 16 A.D.3d 143 [2005]; Trafalgar Co. v. Malone, 73 Misc.3d 137 (A), 155 N.Y.S.3d 272 (NY App. Term. 2021).
Thus, as the language adopted by the Legislature nearly mirrored the language used in the Multiple Dwellings Law, this Court is guided from the plethora of cases interpreting Multiple Dwellings Law. As the Court stated in Malden v. Wykoff S.P., LLC, 192 A.D.3d 1002, 1005, 146 N.Y.S.3d 143 (2d Dept. 2021) : An owner of a de facto multiple dwelling who fails to obtain a proper certificate of occupancy or comply with the registration requirements of the Multiple Dwelling Law cannot recover rent or use and occupancy.
Order (Marcia J. Sikowitz, J.), dated March 2, 2021, insofar as appealed from, affirmed, with $10 costs. In view of Civil Court's unchallenged determination that the two apartments occupied by tenant had been previously illegally altered by landlord or its predecessor, and were occupied without a valid certificate of occupancy, landlord was precluded from recovering rent or use and occupancy (see Multiple Dwelling Law [MDL] ยงยง 301[1], 302; Chazon, LLC v Maugenest, 19 N.Y.3d 410 [2012]; Malden v Wykoff S.P., LLC, 192 A.D.3d 1002 [2021]; Barrett Japaning, Inc. v Bialobroda, 190 A.D.3d 544 [2021]; Matter of GVS Props. LLC v Vargas, 172 A.D.3d 466 [2019]; Matter of 49 Bleecker, Inc. v Gatien, 157 A.D.3d 619 [2018]; Hart-Zafra v Singh, 16 A.D.3d 143 [2005]). Thus, the use and occupancy deposited into court by tenant pursuant to RPAPL 745(2), as per Civil Court's January 2018 orders, was properly directed to be returned to tenant (see RPAPL 745[2][d][iii]).