In consolidated appeals, plaintiff appeals from two judgments of the Civil Court of the City of New York, Bronx County, entered on or about November 3, 2003 after a nonjury trial (Francis M. Alessandro, J.) in favor of defendant dismissing the complaints.

PER CURIAM:

Judgments entered on or about November 3, 2003 (Francis M. Alessandro, J.) affirmed, with $25 costs.

Plaintiff-tenant has demonstrated no basis for a return of the rents previously paid by it in connection with its commercial leasehold. "In the case of a commercial lease where the landlord has made no covenant to obtain a certificate of occupancy and the tenant's right to possession is wholly undisturbed, the mere absence of a certificate of occupancy does not relieve the tenant of its fundamental obligation to pay rent" (Silver v. Moe's Pizza, 121 AD2d 376, 378 [1998]). To the extent that Multiple Dwelling Law § 302 is applicable, it may not be used as a sword to recoup rents already paid (Baer v. Gotham Craftsman Limited, 154 Misc 2d 490, 492-493 [1992]).

We have considered and rejected tenant's remaining argument.

This constitutes the decision and order of the court. [*2]
I concur.
I concur.
I concur.
Decision Date: August 09, 2005