Opinion
No. 570648/23
12-21-2023
Ormonde Equities LLC, Petitioner-Landlord-Appellant, v. Suzanne Jacoby, Respondent-Tenant-Respondent.
Unpublished Opinion
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
PER CURIAM.
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Daniele Chinea, J.), dated November 18, 2022, which granted tenant's motion to dismiss the petition, and denied, as moot, landlord's cross motion to amend the petition in a nonpayment summary proceeding.
Order (Daniele Chinea, J.), dated November 18, 2022, affirmed, with $10 costs.
Civil Court properly granted tenant's motion to dismiss the nonpayment petition. It is undisputed that the City of New York, by its Office of Administrative Trials and Hearings, affirmed a finding that the "altered changed building [is] occupied without a valid certificate of occupancy," in violation of Administrative Code of City of NY §§ 28-118.3.1 and 28-118.3.2. The lack of a certificate of occupancy for the building precludes landlord from seeking to recover rent or use and occupancy 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 alteration/change underlying the violation (see West 48th Holdings LLC v Eliyahu, 64 Misc.3d 133 [A], 2019 NY Slip Op 51066[U] [App Term, 1st Dept 2019]).