Opinion
23530
February 25, 2003.
Appeal by tenant from an order of the Civil Court, Kings County (O. Chin, J.), entered January 23, 2002, denying his motion to vacate the stipulation of settlement.
Brian Quinn, appellant pro se.
Meryl L. Wenig, Brooklyn, for respondent.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
MEMORANDUM.
Order unanimously modified by granting tenant's motion to vacate the stipulation of settlement to the extent of striking the provisions thereof relating to the tenant's payment of use and occupancy, and landlord's entitlement to enter a money judgment; as so modified, affirmed without costs.
In this residential holdover proceeding, landlord does not dispute that the premises is registered as a multiple dwelling governed by certificate of occupancy requirements (Multiple Dwelling Law § 4). Under the circumstances, tenant's residential use of a commercial storefront premises therein, in violation of the certificate of occupancy, bars recovery of rent due under the lease and of use and occupancy after the lease expired (Multiple Dwelling Law §§ 301, 302 [b]; Jalinos v Ramkalup, 255 A.D.2d 293). Landlord has not obtained, nor manifested efforts to obtain, a conforming certificate of occupancy (cf. 9 Montague Terrace Assoc. v Feuerer, 191 Misc.2d 18, 19). It is irrelevant that the remaining, residential premises are properly certified (Commercial Hotel v White, NYLJ, Aug. 6, 2002 [App Term, 2d 11th Jud Dists]). While tenants' waivers of rent-impairing and nonjurisdictional defenses and counterclaims in settlement stipulations are generally enforced [Koren-DiResta Constr. Co. v New York City School Constr. Auth., 293 A.D.2d 189, 195; see Hallock v State of New York, 64 N.Y.2d 224, 230; Kazimierski v Weiss, 252 A.D.2d 481), the proscription provided in Multiple Dwelling Law § 302 [b], deemed penal in nature and strictly applied (e.g. Goho Equities v Weiss, 149 Misc.2d 628, 631 [App Term, 1st Dept]), constitutes a regulatory restraint on landlord that may not be "waived" by stipulation. To the extent that Holder v Williams ( 188 Misc.2d 73) holds to the contrary, it should not be followed. We note that cases permitting landlord to collect rent or use and occupancy absent a conforming certificate of occupancy generally do so on landlord's proof of substantial conformity to Code standards and condition such payments on landlord's actual procurement of the requisite certificate (e.g. Zane v Kellner, 240 A.D.2d 208, 209; Lipkis v Pikus, 99 Misc.2d 518, 521 [App Term, 1st Dept], affd 72 A.D.2d 697).
Inasmuch as landlord is entitled to maintain a holdover proceeding to recover possession of premises occupied in violation of a certificate of occupancy (Hornfeld v Gaare, 130 A.D.2d 398, 400) and the remaining terms of the settlement stipulation are severable from the unenforceable terms and constitute a proper disposition of the parties' rights and interests, we find no basis to strike the portion of the stipulation which awards landlord possession especially where, as here, tenant failed to make a sufficient showing of any defenses to landlord's claimed entitlement to possession (Marrocco v Lugero, NYLJ, Oct. 6, 1999 [Civ Ct, Richmond County]).
ARONIN, J.P., GOLIA and RIOS, JJ., concur.