| Azad v Ahmed |
| 2024 NY Slip Op 50610(U) [82 Misc 3d 1253(A)] |
| Decided on May 2, 2024 |
| Civil Court Of The City Of New York, Queens County |
| Sanchez, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Marin Azad,
Petitioner(s),
against Jewel Ahmed; DEENA AHMED; "John" "Doe" "Jane" "Doe," Respondent(s). |
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers NumberedThis holdover proceeding is predicated upon a 30-day notice of termination. The petition alleges that the subject premises are an "illegal " unit and therefore any lease executed for the subject premises is deemed invalid as a matter of law.
Respondent has filed a motion to dismiss. Respondent presents an executed lease between the parties, and it has not expired. The expiration date on the lease is June 30, 2024. Respondent argues that the predicate notice and petition fail to describe the subject premises properly or accurately describe the premises as required by Real Property Action and Proceeding Law (RPAPL) §741(3), and the case must be dismissed.
Respondent is correct and the petition is dismissed.
Discussion and Legal ConclusionThe subject premises would appear to be a one-family home and being used, by the actions of the petitioner, as a defacto 2-family dwelling. Unopposed is respondent's affidavit that he and his family occupy the first and second floor. The entrance is on the first floor and the bedrooms are on the second floor. The other unit has a separate entrance at the back of the building, and it is occupied by another family, unrelated to respondent. It is acknowledged in petitioner's papers that the other unit is occupied by petitioner's relative. NYSCEF Doc. No.13, at paragraph 9.
The use of these two units as described, does not render the lease invalid as a matter of law.
The lease in effect cannot be declared void and null in this summary proceeding. Declaratory relief is not available in Housing Court, and this is what the court would be required to do to granted petitioner's relief. It is undisputed that the lease was executed between petitioner and respondent and the use of the subject premises does not seem to have changed or been modified since the lease was executed.
There is no finding or evidence from the New York City Department of Buildings (DOB) that the subject premises rented by respondent are an "illegal unit." The lease proffered, which is undisputed, does not describe the premises rented as the second and third floor. The court takes judicial notice of the DOB website regarding the subject premises, and it shows that there are no certificates of occupancy on file for this address. See Civil Court Act §110 [FN1]
There is no legal or factual basis to find that the subject premises are an illegal unit or being used as an illegal unit by respondent. If there were a violation of a certificate of occupancy, it would not render all units in a building illegal. See Multiple Dwelling Law Section [*2]301.
The petition is dismissed as there is a lease in full force and effect. There is no proof that the subject premises are an "illegal" unit. The 30-day termination notice does not allege a breach of a lease term, and as such, the predicate notice is defective, it cannot be corrected and requires dismissal of this proceeding.
This Decision/Order will be filed to NYSCEF.
This constitutes the Decision/Order of the court.
Dated: May 2, 2024