In August of 2024, Petitioner commenced this nonpayment proceeding against [*2]Respondent's Latricia Odom and Khalil Odom to collect rental arrears for the premises located at 8224 By Parkway, Apt. 2B, Brooklyn, NY 11214 ("premises"). The Petition sought $11,407.04 in rent that accrued from February 2024 through August 2024. (NYSCEF Doc.1). The premises are Rent Stabilized. Respondent Laticia Odom filed a pro se Answer on September 13, 2024, and the proceeding was calendared for intake on March 17, 2025. (NYSCEF Doc. 3). Respondent obtained counsel through intake and NYLAG filed a Notice of Appearance. Shortly thereafter, NYLAG moved for leave to file an Amended Answer and for summary judgment on Affirmative Defenses raised therein. (NYSCEF Docs 6-15).

As a preliminary matter, Respondent's request to file an Amended Answer is granted. CPLR Rule 3025(b) provides that, "A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." The Court of Appeals has consistently held that leave to amend pleadings "shall be freely given" absent prejudice or surprise resulting directly from the delay. (Edenwald Contracting Co., Inc. v. City of New York, 60 NY2d 957, 959 [1983]; McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; see also, Lanpont v. Savvas Cab Corp., Inc. 244 AD2d 208 [1st Dep't., 1997] [In the absence of surprise or prejudice, it is abuse of discretion, as a matter of law, for trial court to deny leave to amend answer during or even after trial].

Furthermore, as detailed in the court's summary judgment analysis below, the proposed defenses contained in the Amended Answer are neither palpably insufficient nor patently devoid of merit on their face. (Confidential Lending, LLC v. Nurse, 120 AD3d 739, 741 [2nd Dep't 2014]). This Department adheres to the liberal policy that an evidentiary showing of merit is not required under CPLR 3025(b), that the Court should only determine whether the proposed amendment is "palpably insufficient" to state a cause of action or defense, or is patently devoid of merit, and that if the opposing party wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment upon a proper showing. (Lucido v. Mancuso, 49 AD3d 220, 229 [2nd Dep't 2008]). Applying this liberal policy, Respondent is granted leave to interpose the defenses and counterclaims raised in the Amended Answer, which are not palpably insufficient or devoid of merit.

The court now turns to the second prong of Respondent's motion. Respondent moves for summary judgment on the First, Second and Fourth Affirmative Defenses in the Amended Answer. Respondent alleges that on January 21, 2021, the Department of Building ("DOB") issued two violations to the subject building for occupancy contrary to the certificate of occupancy that remain open to this day, with no compliance recorded. (NYSCEF Docs. 10 and 11). Both violations (hereinafter referred to as the "OATH/ECB violations"), which concern the alleged conversion of the cellar to a dwelling unit, were adjudicated by The Office of Administrative Trials and Hearings ("OATH") at a hearing on October 17, 2022, and OATH issued a decision dated October 24, 2022 "crediting [DOB's] evidence and inspector's testimony as to this observation which indicate that an additional living space/unit was created in the cellar. Further, I find the respondent [Petitioner in the instant case] did not establish a defense to the violation." (NYSCEF Doc. 19, page 64). Therefore, Respondent argues that summary judgment is warranted as there is no genuine issue of material fact that Petitioner is barred from collecting [*3]rent in this nonpayment proceeding pursuant to MDL § 301 and MDL § 302 as the subject building has open violations for occupancy contrary to the certificate of occupancy for the entire period in which rent arrears are sought.

Petitioner opposes the motion in its entirety. Petitioner argues that the OATH/ECB violations are inapplicable as they pertain to the basement of the building and do not impact the certificate of occupancy for Respondent's apartment. According to Petitioner, even if Petitioner received violations for converting the cellar to a dwelling unit, that conversion has no bearing on Respondent's obligation to pay rent for the apartment that Respondent occupies. In framing this opposition, Petitioner does not present any evidence to refute the existence of the OATH/ECB violations or allege that a certificate of correction was filed and accepted by the DOB.

To obtain summary judgment, the moving party has the burden of establishing its cause of action or defense sufficiently to justify judgment in its favor as a matter of law. (See, CPLR § 3212(b); Friends of Animals, Inc. V. Associated Fur Mfrs. Inc.,390 N.E.2d 298 [1979]). If there is any doubt as to the existence of a triable issue, summary judgment should not be granted. (Glick & Dolleck, Inc. V. Tri-Pk Export Corp., 22 NY2d 439 [1968]). As summary judgment is a drastic remedy, "the facts must be viewed in the light most favorable to the non-moving party." (Vega v. Restani Construction Corp., 18 NY3d 499, 503 [2012]). "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented." (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; citing, Di Menna & Sons v. City of New York, 301 NY 118 [1950]). Once the moving party has met its burden, it is incumbent on the opposing party to present evidence to raise a triable issue of fact. CPLR § 3212(b).

MDL § 302 provides that if any dwelling or structure is occupied in whole or in part without a conforming certificate of occupancy in violation of MDL § 301, the owner cannot recover rent for the period of noncompliance and cannot maintain an action or special proceeding for nonpayment of such rent. Contrary to Petitioner's opposition papers, the Court of Appeals in Chazon, LLC rejected limitations on the applicability of MDL § 302, declaring that "in the absence of compliance the law's command is quite clear: 'No rent shall be recovered by the owner of such premises and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.'" (Chazon, LLC v. Maugeneset, 19 NY3d 410, 415 [2012]). 15). Whereas previously some courts looked to whether a certificate of occupancy violation rendered a particular tenant's residential occupancy unlawful, or delved into the circumstance surrounding what caused the violation, the court in Chazon, LLC determined that such inquiries which may result in imposing limitations on the applicability of MDL § 302 "may make sense from a practical point of view but we find nothing in the opinions endorsing such results and nothing anywhere else to explain how they can be reconciled with the text of the statute. They simply cannot." (Id.). This strong, unequivocal language from our state's highest court is controlling. While Chazon, LLC concerned interpreting MDL § 301 and MDL § 302 in the context of a Loft Law case, the precedent has been broadly applied, including to nonpayment and holdover proceedings. (See, GVS Props. LLC v. Vargas, 59 Misc 3d 128(A) [App Term, 1st Dep't 2018]]; West 48th Holdings LLC v. Eliyahu, 64 Misc 3d 133(A) [App Term, 1st Dep't 2019]; Trafalgar Co. v. Malone, 73 Misc 3d 137(A) [App Term, 1st Dep't 2021]; see also, United 90 LLC v. Gonzalez, 81 Misc 3d 1206(A) [Civ Ct, Hous Part, Kings County 2022]).

For the foregoing reasons, Respondent is granted summary judgment on its First, Second [*4]and Fourth Affirmative Defenses pursuant to MDL § 301 and MDL § 302. There are two (2) open OATH/ECB violations for occupancy contrary to the building's certificate of occupancy, and those violations are prima facie evidence that the certificate of occupancy violations exist. Petitioner does not present any evidence to refute the fact that the subject building has open violations for occupancy contrary to the certificate of occupancy during the entire period for which rent arrears are sought. As such, Petitioner is precluded from prosecuting this nonpayment proceeding. (Chazon, LLC v. Maugeneset, 19 NY3d 410 [2012]).

Therefore, Respondent's motion is granted, and this proceeding is dismissed. The court does not reach the balance of the arguments presented in Respondent's motion as they are moot. This constitutes the Decision/Order of the court, which shall be uploaded to NYSCEF.