Upon the foregoing papers in this ejectment action, plaintiff 2610 Cropsey Development Corp. moves for partial summary judgment in its favor with respect to its causes of action seeking possession of the subject premises.

Plaintiff is the owner in fee simple of the premises located at 2616-2620 Cropsey Avenue in Brooklyn. The second floor of the subject premises, which is presently occupied by defendant, is zoned for office use only. In its motion, plaintiff alleges that it has received violations from the City of New York based upon the illegal residential occupancy by defendant Paula Castro and that "[t]he only way to cure the violations is to remove the defendant from possession of the premises". Because plaintiff has allegedly established its ownership of the premises, a demand for defendant's removal and defendant's wrongful [*2]possession, it argues that summary judgment in its favor with respect to the issue of possession is warranted.

Defendant contends that she and her mentally incapacitated daughter have resided at the premises for over eighteen years. Defendant asserts that she occupies the subject apartment under a valid forty-year lease which expires in 2037, and which specifically provides for her use of the premises for "residence or commercial" purposes. According to defendant, the lease was executed by the former owner of the building in gratitude for defendant's generosity in caring for the owner and his mentally incapacitated sister. There seems to be no dispute that plaintiff purchased the subject premises with notice of defendant's lease. Defendant suggests that, rather than seek her removal from the premises, plaintiff may cure the violations by amending the certificate of occupancy to include residential use.

It is well settled that a landlord may not remove a tenant on the ground of illegal occupancy where: (1) the landlord created the illegality (see 816 Fifth Ave., Inc. v Purdy, [1951]), or (2) where the landlord took title with notice of an illegality created by a predecessor in title (see In the Matter of K&G Co. v Pedro Reyes, 52 Misc 2d 606 [1966]), and (3) the illegality is susceptible of cure without undue expense or difficulty (see Matter of K&G Co. v Pedro Reyes, 52 Misc 2d 606 [1966]).

In this case, the evidence establishes that the condition complained of by the landlord which resulted in the issuance of violations was created by the landlord and its predecessors and the landlord may not use these acts and conditions as a basis for a claim of illegal occupancy of the apartment by defendant (see H. Casabianca, Inc. v Connobio, 205 Misc 380 [1952]). Moreover, the alleged illegal occupancy and the violations which resulted therefrom are capable of removal by plaintiff and the burden with respect thereto rests upon it (see 816 Fifth Avenue, Inc. v Purdy, 127 NYS2d 695 [1951]). There is no evidence that the violations are not curable without the removal of the tenant. Accordingly, the motion by plaintiff is denied.

The foregoing constitutes the decision and order of this court.

J. S. C.