Opinion
February 2, 2001.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 28, 2000, which, inter alia, denied plaintiff landlord's motion for summary judgment upon its claim for withheld rent and use and occupancy, unanimously affirmed, without costs.
Rizpah A. Morrow for plaintiff-appellant.
Iris M. Darvin for defendants-respondents.
Before: Rosenberger, J.P., Nardelli, Ellerin, Saxe, Friedman, JJ.
In view of factual issues as to whether plaintiff landlord knowingly countenanced defendants ' residential occupancy in its building, and as to whether, during the period of defendants' residential occupancy in plaintiff's building, the building was a "multiple dwelling", within the meaning of Multiple Dwelling Law § 4(7), for which no certificate of occupancy had been obtained, summary judgment upon plaintiff's claim for withheld rent and use and occupancy was properly denied (see, Multiple Dwelling Law §§ 301, 302[a] and [b]; 99 Commercial St., Inc. v. Llewellyn, 240 A.D.2d 481, 483, lv denied 90 N.Y.2d 809).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.