City Court of Yonkers, June 16, 2022

Legal Services of the Hudson Valley, Yonkers (Melinda Licciardello of counsel), for Benita Garcia, respondent.

James G. Dibbini & Associates, P.C., Yonkers (James G. Dibbini of counsel), for petitioner.

Petitioner commenced the above-entitled nonpayment proceeding seeking to recover possession and a money judgment in the sum of $4,400. Respondent filed a declaration of hardship which petitioner challenged. Following a hardship hearing, the [*2]petitioner's motion to vacate the hardship stay was denied and the matter stayed pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA). The matter was scheduled for a conference on February 9, 2022, after the expiration of the CEEFPA stay on January 15, 2022.

On or about November 2021, respondent Benita Garcia vacated the premises. The matter appeared on the court's calendar for a conference on February 9, 2022, and was stayed for a determination on the respondent's COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) application.

Now, the respondent, through counsel, moves for summary judgment on the grounds the petitioner violated Multiple Residence Law § 302-a, which prohibits the recovery of rent for nonconforming tenancies in multiple dwellings. Respondent contends, in essence, during her tenancy at 27 Fenway North, Yonkers, New York, two other families lived in the premises. She stated a family of four lived in the first-floor apartment and in the basement "in-law" apartment, lived a gentleman whom the respondent came to know as "Thomas Curtis." Respondent alleged Mr. Curtis was the sole resident of the basement "in-law" apartment and stated all tenants of the premises paid rent to petitioner, Katherine Kaloedas as the owner.

It appears based on a City of Yonkers Department of Buildings Certificate of Occupancy (C.O.), 27 Fenway North was originally constructed as a two-family home. There was one apartment on the first and second floors. The basement was a{**76 Misc 3d at 484} two-car garage. Only two families were permitted as the C.O. explicitly states: "Occupancy by more than Two Families Illegal—More than Two Family Occupancy will automatically revoke Certificate of Occupancy." (Respondent's exhibit B.)

Thereafter, and on or about June 9, 1992, alterations were made to the basement to convert it from a garage to an "in-law" apartment consisting of a kitchen, bathroom, living room and bedroom. A certificate of completion was issued on the aforesaid date and provides: "OCCUPANCY BY MARYANN CIANCIO KALOEDAS FOR IN-LAW APARTMENT ONLY AS STATED ON PERMIT. OCCUPANCY BY OTHER THAN MARYANN CIANCIO KALOEDAS IS ILLEGAL AND CERTIFICATE OF COMPLETION WILL AUTOMATICALLY BE REVOKED." (Respondent's exhibit C.)

Respondent contends the building is a multiple residence without a valid C.O. which prohibits petitioner from maintaining an action or collecting rent under the newly enacted Multiple Residence Law § 302-a (1). [*3]

Multiple Residence Law § 4 (33) defines a multiple dwelling as a building that is "occupied as the temporary or permanent residence or home of three or more families living independently of each other." As there is no dispute by petitioner that the premises contain three units of tenants, the court finds that 27 Fenway North qualifies as a multiple residence.

As a multiple residence, a valid C.O. was required pursuant to Multiple Residence Law § 302. This statute prohibits occupancy of a multiple dwelling until a certificate of occupancy is issued.

Multiple Residence Law § 302-a (1) provides:

"If any dwelling^[FN1] or structure be occupied in whole or in part for human habitation in violation of section three hundred two of this article, no rent shall be recovered by the owner of such premises for said period, and no action for possession of said premises for nonpayment of such rent shall be maintained therefor."

Here, the only C.O.^[FN2] before the court was submitted by respondent as an exhibit to her motion for summary judgment{**76 Misc 3d at 485} and authorizes the entire building for use as a "Two Family Dwelling" (respondent's exhibit B).

Petitioner opposed arguing the allegation that petitioner is prohibited from collecting rent is "completely erroneous" and cites respondent's failure to provide case law to support this contention. However, Multiple Residence Law § 302-a (1) was enacted in November 2019 and the court, despite extensive research of the issue, was unable to find any cases in support.

The Bill Jacket for Laws of 2019, chapter 444 which enacted Multiple Residence Law § 302-a explains that the legislative intent in adopting the statute was to "provide a more consistent statewide approach and establish an effective mechanism that bars law-breaking landlords from collecting any rent during the period of time there is no certificate of occupancy." (Assembly Mem in Support, Bill Jacket, L 2019, ch 444.) The subject and purpose of the legislation was to prohibit landlords from the maintenance of an eviction proceeding if the building does not have a valid certificate of occupancy. (Id.) Thus, as the language adopted by the legislature nearly [*4]mirrored the language used in the Multiple Dwelling Law, this court is guided from the plethora of cases interpreting the Multiple Dwelling Law.

As the Court stated in Malden v Wykoff S.P., LLC (192 AD3d 1002, 1005 [2d Dept 2021]): "An 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 rent or use and occupancy." (Citing Multiple Dwelling Law §§ 302 [1] [b]; 325 [2], Sheila Props., Inc. v A Real Good Plumber, Inc., 59 AD3d 424, 425 [2d Dept 2009], Caldwell v American Package Co., Inc., 57 AD3d 15 [2d Dept 2008], and Jalinos v Ramkalup, 255 AD2d 293 [2d Dept 1998].)

Petitioner next argued the rent forfeiture provision of the statute may not be invoked when "the absence of the required certificate of occupancy [did not] adversely affect[ ] the habitability of the structure or render[ ] [respondent's] residential occupancy criminal or illegal." (Arnav Indus., Inc. v Pitari, 82 AD3d 557, 558 [1st Dept 2011].) This argument fails. First, petitioner acknowledged that the premises are occupied by more than two families. The C.O. explicitly provides that occupancy of the premises by more than two families operates to automatically revoke the C.O. Thus, while petitioner contends respondent's apartment was unaffected by the basement, this was not the case.{**76 Misc 3d at 486}

Furthermore, the Second Department cases noted above adhere to a plain reading and application of the legislation. The Bill Jacket for Laws of 2019, chapter 444 which enacted Multiple Residence Law § 302-a explains the legislative intent behind adopting the statute, which was to "provide a more consistent statewide approach and establish an effective mechanism that bars law-breaking landlords from collecting any rent during the period of time there is no certificate of occupancy." (Assembly Mem in Support, Bill Jacket, L 2019, ch 444.)

As set forth in Caldwell v American Package Co., Inc. (57 AD3d 15, 25-26 [2d Dept 2008]):

"The Legislature further decided to cast upon the owner the obligation to ensure compliance by expressly depriving the owner of any entitlement to rent or other remuneration in the absence of a certificate of occupancy. Short of a situation such as that presented by Chatsworth, where the tenant actually interfered with the owner's attempt to legalize the premises, it would be inconsistent with the [*5]Legislature's command to shift this burden by estopping the tenant from relying on the statute as a defense."

The court finds that the language and intent of the legislature is clear and unambiguous. (McKinney's Cons Laws of NY, Book 1, Statutes § 76.) The only certificate issued for the premises was for a two-family dwelling. This is not within the contemplation of Multiple Residence Law § 302. (See e.g. Schwarzkopf v Buccafusca, 98 NYS2d 42 [App Term, 1st Dept 1950].)

Accordingly, and for all the foregoing reasons, petitioner may neither maintain a nonpayment proceeding nor recover rent as petitioner failed to obtain a proper certificate of occupancy. (Multiple Residence Law § 302-a [1].)

Therefore, it is hereby ordered, respondent's motion for summary judgment is granted; and it is further ordered that the petition is dismissed without costs.