In this action, the plaintiff owner, who is allegedly converting his rent-stabilized building into a single family residence, seeks to eject defendants, a disabled former superintendent and his wife, from a purportedly illegal cellar apartment, and to obtain an award of use and occupancy. The plaintiff moves, pursuant to CPLR 3212, for summary judgment and an order of ejectment. Defendants cross-move: (1) pursuant to CPLR 3212 and 1003, for summary judgment and dismissal of the complaint for failure to join a necessary party; or (2) pursuant to CPLR 3126, for an order directing the plaintiff to appear for deposition or, in the alternative, to strike plaintiff's pleadings.

In 1985, defendant Tony Singh (Singh) began working at the subject building for Hart-Zafra's grandmother. See Manjit Kaur Affidavit in Support of Cross Motion (Kaur Affidavit), ¶ 3. On August 16, 1989, the New York City Department of Buildings (DOB) issued Hart-Zafra a violation (no. 81689CD1GS04), regarding the use of the building's cellar (the 1989 violation). See Price Affirmation, Ex. E. The violation description states that:

[o]ccupancy contrary to that allowed by the C of O 27510 at the cellar level occupancy changed from boiler room and storage to boiler room storage and offices remedy discontinue illegal occupancy forthwidth [sic] [.]

In 1997, Singh suffered a major stroke leaving him "partially paralyzed and mentally challenged." Kaur Affidavit, ¶ 5. At that point, Kaur allegedly took over her husband's superintendent duties, and paid the rent using her personal checks until Hart-Zafra refused to accept them. See id. ¶¶ 6-7; Singh Affidavit, ¶ 5.

Recently, Hart-Zafra decided to convert the subject building into a single family residence for his own use. Hart-Zafra attempted to relocate defendants, by providing defendants a list of potential locations and offering his financial assistance. See Singh Affidavit, Exs. I, J. Defendants refused to move, describing Hart-Zafra's demands and letters as insulting and aggravating to Singh's physical condition. Defendants also claim that Hart-Zafra retaliated against them by shutting off their electricity and gas, and ignoring their complaints of leaks. See Singh Affidavit, ¶¶ 7-8.

Present Action

On or about January 10, 2003, Hart-Zafra commenced this action seeking: (1) an order of ejectment; and (2) an award of use and occupancy in an amount to be determined by the court, but not less than $2,000 per month. See Price Affirmation, Ex. A. Hart-Zafra argues that the cellar apartment is illegal, does not conform to the certificate of occupancy, and cannot be legalized. Hart-Zafra further alleges that, due to the outstanding 1989 violation, he is subject to penalties by reason of the illegal occupancy, which cannot be remedied without the removal of the defendants. Defendants submitted a verified answer asserting six affirmative defenses, and eight counterclaims. See id., Ex. B.

Present Motions

Hart-Zafra now moves for summary judgment to eject defendants because defendants allegedly occupy an illegal cellar apartment that cannot be legalized. Defendants cross-move: (1) pursuant to CPLR 3212 and 1003, for summary judgment and dismissal of the complaint for failure to properly join Kaur as a necessary party; or (2) pursuant to CPLR 3126, for an order directing plaintiff to appear for deposition without delay, or, in the alternative, to strike or preclude plaintiff's pleadings. In response to the cross motion, Hart-Zara claims that he included Kaur as a defendant in this action, under the incorrect name of "Harminder Singh a/k/a Harminder Karr," and seeks leave to amend.

In order to succeed on a summary judgment motion, the movant needs to prove its claim sufficiently "as a matter of law." Spanbock v The Fifty Fourth St. Condominium, 3 AD3d 395, 396 (1st Dept 2004). A summary judgment motion is properly denied "in light of triable issues" of fact. Id.; Tabak v Koppel, 160 AD2d 358, 359 (1st Dept 1990).

Motion for Summary Judgment

Ejectment

In order to obtain summary judgment on his first cause of action for ejectment, Hart-Zafra must show conclusive proof that the cellar apartment is illegal. First, Hart-Zafra alleges that the [*3]cellar apartment violates Multiple Dwelling Law (MDL) § 301 and the Administrative Code of the City of New York (Administrative Code) § 27-217 because no written permit for residential occupancy of the cellar exists, and this use is inconsistent with the building's certificate of occupancy stating that the cellar shall be used only as a boiler room and for storage. Second, Hart-Zafra asserts that the DOB issued the 1989 violation due to this illegal use of the cellar.

The Court concludes that Hart-Zafra has failed to sustain his initial burden of showing that he is entitled to judgment as a matter of law. To begin, this motion is premature, since no discovery has yet taken place. Furthermore, the motion does not include an affidavit from Hart-Zafra. It is true that plaintiff's attorney has submitted an affirmation, however it is well-settled that an attorney's affirmation is of no probative value on a motion for summary judgment unless he or she has personal knowledge of the facts. Adam v. Cutner & Rathkopf, 238 AD2d 234 (1st Dept. 1997). Although the motion is accompanied by brief affidavits of two experts, the Court finds them to be entirely conclusory and woefully inadequate.^[FN1] Neither expert indicates the factual bases for their conclusions that the apartment is illegal. Nor do they explain whether any attempt was made to legalize the apartment or why the unit cannot be renovated to come into compliance with applicable codes and regulations. Moreover, there is no indication in the affidavits whether either expert personally inspected the space. Nor are there any blueprints or diagrams or any other proof of the relevant dimensions of the apartment. Having failed to come forward with such proof, this Court cannot conclude, as a matter of law, that the apartment is illegal.

In any event, the court finds that the residential use of premises without a residential certificate of occupancy is not "presumptively unsafe" and in violation of the MDL. Sima Realty LLC v Philips, 282 AD2d 394, 395 (1st Dept 2001). The New York State Legislature enacted the MDL:

to protect tenants of multiple dwellings against unsafe living conditions, not to provide a vehicle for landlords to evict tenants on the ground that premises are unsafe. To the extent the policy underlying the Multiple Dwelling Law is at all pertinent, its tendency would be to compel the landlord's expeditious conversion of the premises to residential use.

If the DOB provides the landlord "due notice" that the residential use of the basement/cellar is in violation of law, then the landlord is obligated to remove the illegal tenants. Hinke v Paulsen, 125 NYS2d 430 (App Term, 2d Dept 1952). Here, questions of fact remain regarding whether DOB actually supplied "due notice" to Hart-Zafra that the residential use of the cellar is illegal, since the [*4]record shows that the 1989 violation only prohibits using the cellar as office space, and says nothing about residential use. Moreover, since defendants did not move into the apartment until 1993, four years after the violation was issued, the Court cannot determine whether the space may have changed in the intervening years.

Furthermore, "where the landlord himself created the illegality or took title with notice of an illegality created by a predecessor in title," the landlord may not remove the tenant on the ground of illegal occupancy if "the illegality is susceptible of cure without undue expense or difficulty." Matter of K & G Co. v Reyes, 52 Misc 2d 606, 609 (Civ Ct, New York County 1966); see also McDonnell v Sir Prize Contr. Corp., 32 AD2d 660 (2d Dept 1969) (dismissing holdover petition because "landlord failed to establish that the violation in question can be removed only by eviction of the tenant . . . or that compliance with the legal requirements would be unduly burdensome or economically improvident").

Therefore, courts have held that, even assuming a violation exists and due notice was provided, if the tenants have utilized the premises as intended by the parties, the landlord is required to "demonstrate that the certificate of occupancy is incapable of amendment or that it would be unduly burdensome to do so." 625 West End, Inc. v Howard, 2001 WL 1682615 (App Term, 1st Dept 2001) (finding holdover action for cellar apartment "premature," because no proof of violation, and "any violation of the [MDL] with respect to occupancy of the basement is not a basis for eviction at this juncture in the absence of any application to the Department for a permit or the Department's rejection of plans for legalization"); c.f., Hornfeld v Gaare, 130 AD2d 398, 399-400 (1st Dept 1987) (requiring defendant to surrender cellar apartment,after landlord: (1) received violation, (2) hired engineer to cure violation, (3) filed application with DOB to legalize space, and (4) found out application was denied pursuant to MDL § 34, leaving landlord exposed to civil and criminal sanctions).

Here, Hart-Zafra argues that the illegal cellar apartment cannot be legalized, and supplies two expert affidavits, alleging that: (1) the certificate of occupancy does not allow the cellar to be used residentially; and (2) the apartment cannot be legalized since the space cannot be renovated to conform with the requirements for rooms in cellars as listed in MDL § 34. The court finds issues of fact remain regarding: whether Hart-Zafra applied to the DOB to amend the certificate of occupancy or for a permit, or why it was unduly burdensome to submit such an application to try to legalize the apartment.

Hart-Zafra's reliance on East 82 LLC v O'Gormley, 295 AD2d 173, 174 (1st Dept 2002) (see Plaintiff's Memorandum of Law, at 3-4) does not contradict the above proposition. In East 82 LLC, the court affirmed granting plaintiff landlord summary judgment as to possession of the cellar apartments, based on circumstances including "apparent[] incontrovertible evidence" that the illegal cellar apartment could not be legalized. East 82 LLC, 295 AD2d at 173-74. The expert affidavits supplied by Hart-Zafra asserting that defendants' apartment cannot be legalized are insufficient to grant summary judgment as a matter of law, given the conflicting expert affidavit of Mark Ellis submitted by defendants. See Mark Ellis Affidavit in Support of Cross Motion, ¶11. Based on the conflicting expert affidavits and viewing the record in the light most favorable to defendants, the court finds that Hart-Zafra fails to eliminate all questions of fact. Therefore, Hart-Zafra's summary judgment motion is denied.

Use and Occupancy [*5]

The court also denies Hart Zafra's summary judgment motion as to the second cause of action for use and occupancy of Apt. #

1C, because Hart-Zafra permitted defendants to occupy Apt. #

1C without obtaining a proper certificate of occupancy or permit pursuant to the MDL. See Commercial Hotel, Inc. v White, 194 Misc 2d 26, 27 (App Term, 2d Dept 2002) (dismissing claim for use and occupancy due to "lack of a proper certificate of occupancy" for apartment); Jalinos v Ramkalup, 255 AD2d 293, 294 (2d Dept 1998) ("[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 for rent or money for use and occupancy"). In addition, it is irrelevant if the other residential premises are properly certified. See Nii v Quinn, 195 Misc 2d 821, (App Term 2003) (striking provisions of settlement relating to tenant's payment of use and occupancy because landlord failed to obtain conforming certificate of occupancy). In light of the above, the Court finds that defendants are entitled to summary judgment dismissing the second cause of action, pursuant to CPLR 3212(b).

Defendants also allege that Kaur is a necessary party to the action and Hart-Zafra's failure to join her as a defendant provides a sufficient reason to dismiss the action, pursuant to CPLR 1003. The court finds that Kaur may have independent possessory rights and is a necessary party to this action. However, in evaluating the sufficiency of the complaint as a whole, the court finds that Hart-Zafra attempted to include Kaur as a defendant and that his failure to correctly name Kaur constitutes nonprejudicial error. See Ober v Rye Town Hilton, 159 AD2d 16, 17 (2d Dept 1990). The record shows that Kaur was not prejudiced because: (1) Kaur was served with papers; (2) Kaur filed an answer to the complaint, and (3) Kaur is presently before the court. Therefore, defendants' motion to dismiss based on non-joinder is denied, and Kaur's name in the complaint and this action is amended to reflect her correct name, "Manjit Kaur."

Alternative Cross Motion for Discovery

The court denies defendants' alternative motion, pursuant to CPLR 3126, for an order directing Hart-Zara to appear for deposition without delay, because the record fails to show that any notice of deposition for Hart-Zafra was ever sent. The court also denies the portion of defendants motion to strike Hart-Zafra's pleadings, because defendants fail to show that the "drastic sanction of striking a party's pleadings" is justified. Post & Co. v Bitterman, Inc., 180 AD2d 603, 604 (1st Dept 1992). These issues will be resolved at the preliminary conference. Accordingly, it is

ORDERED that the motion for summary judgment by the plaintiff Christopher Hart-Zafra is denied; it is further

ORDERED that summary judgment is granted to defendants, pursuant to CPLR 3212(b), to the extent of dismissing the second cause of action for use and occupancy; it is further

ORDERED that defendants' cross motion to dismiss the complaint based on non-joinder is denied; it is further

ORDERED that defendants' alternative cross motion for an order pursuant to CPLR 3216 is denied; it is further

ORDERED that the name of defendant "Harminder Singh a/k/a Harminder Karr" in this action be amended to "Manjit Kaur"; it is further

ORDERED that plaintiff shall serve a copy of the complaint containing the amended caption on defendants and the trial support office within 30 days; and it is further [*6]

ORDERED that the remainder of the action shall continue, and the parties shall appear at a preliminary conference in Part 24 on June 9, 2004 at 10:30 a.m.

Dated: May 25, 2004

_____________________________Justice Rosalyn Richter