Recitation, as required by CPLR § 2219(a), of the papers considered in review of the motion(s):

Upon the foregoing cited papers, the court's decision and order is as follows:

Petitioner commenced this nonpayment proceeding in February 2024, seeking $2,980.89 in past-due rent (see Petition, NYSCEF Doc. No. 1). Respondent Nelia Ramirez appeared by counsel in March 2024, after which time the proceeding was repeatedly adjourned on the parties' consent, apparently to accommodate settlement discussions involving both the instant proceeding and an HP proceeding in which Ramirez was involved (see, e.g., Stipulation, NYSCEF Doc. No. 15). Respondent moved in December 2024 to amend her answer, then withdrew the motion without prejudice in anticipation of filing the instant motion.

Respondent now moves for leave to amend her answer and for summary judgment. Petitioner opposed the motion in writing, Respondent replied, and after oral argument the court reserved decision on the motion. For the reasons stated below, Respondent's motion is granted and the proceeding is dismissed.

Turning first to Respondent's motion to amend her answer, a review of a court's file reveals that both Respondent and Petitioner misapprehend the procedural history of this case. The pro se written answer to which both parties refer was submitted not by Ramirez but by Mireille Vargas, appearing herein as "Jane Doe" (see Answer, NYSCEF Doc. No. 4). Ramirez [*2]has apparently never interposed a written answer in this case, and so the motion is more properly considered as one for leave to file a late answer under CPLR § 3012(d) than as a motion for leave to amend the answer under CPLR § 3025(b). Rather than rejecting the motion on these technical grounds, the court deems it a motion to interpose a late answer and considers it under the appropriate standard. Section 3012(d) provides:

Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.

Such a motion does not require that the moving party establish a meritorious defense (see Metro. Prop. and Cas. Ins. Co. v Braun, 120 AD3d 1128, 1128 [1st Dept 2014]). Here, the court can discern no history of "willful neglect" or prejudice to Petitioner that might weigh against Respondent's motion (see Interboro Ins. Co. v Perez, 112 AD3d 483, 483 [1st Dept 2013]). Since its commencement, the proceeding has been repeatedly adjourned on the parties' consent, with both counsel apparently content for this case to maintain a holding pattern pending the resolution of the parallel HP proceeding. Upon the resolution of that proceeding, Respondent moved with minimal delay to interpose her answer here. Additionally, the apparent failure of Respondent's counsel to discern that no answer had been filed on behalf of Ramirez would seem to constitute the sort of law office failure that, while not particularly compelling, constitutes good cause for delay (see Braun at 1128). In view of the "strong public policy favoring the resolution of cases on the merits" (Chevalier v 368 E. 148th Street Assocs., LLC, 80 AD3d 411, 413 [1st Dept 2011]), Respondent's motion for leave to file a late answer is granted, and the Proposed Amended Answer (NYSCEF Doc. No. 27) is deemed served and filed.

The remainder of Respondent's motion seeks summary judgment under CPLR § 3212. Summary judgment is proper only when there are no disputed issues of triable fact (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). The proponent of a motion for summary judgment has an initial burden to produce evidence and argument sufficient to demonstrate the absence of any disputed issue of material fact and the right to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557 [1990]). If the moving party meets this burden, the burden then shifts to the opposing party to submit proof in admissible form sufficient to identify a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019 [1995]). In opposition to a motion under § 3212, a party must "lay bare and reveal his proofs, in order to show that the matters set up in his [pleadings] are real and are capable of being established upon a trial" (Almark Holdings Co., LLC v Pizza147 NY LLC, 77 Misc 3d 130(A) [App Term, 1st Dept 2022], quoting Middle States Leasing Corp. v Manufacturers Hanover Tr. Co., 62 AD2d 273, 276 [1st Dept 1978]).

Petitioner takes issue with the admissibility of the proofs offered by Respondent in support of the motion. These proofs consist of attorney affirmations (NYSCEF Doc. Nos. 25 & 44), Respondent's affirmation (NYSCEF Doc. No. 26), and a series of records of the New York City Department of Housing Preservation and Development (NYSCEF Doc. Nos. 28, 30, 33, 37) and the New York City Department of Buildings (NYSCEF Doc. Nos. 29, 34-36). As an initial matter, attorney affirmations not based upon personal knowledge lend no factual support to a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]).

Petitioner argues that Respondent's affirmation is procedurally improper insofar as it lacks the notarization required of an affidavit and the statutory language required by CPLR § 2106. Section 2016—as operative at the time when the motion papers were filed—required that [*3]an affirmation be in "substantially the following form:"

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

Respondent's affirmation begins with the following:

NELIA RAMIREZ, being duly sworn, hereby deposes and says under penalty of perjury as follows:

1. I have read the contents of the foregoing motion.

2. The information stated therein is true to my own knowledge except as to those matters therein stated to be alleged upon information and belief, and as to those matters, I believe the information to be true.

(NYSCEF Doc. No. 26). The affirmation is also dated by its signature line (id.). While courts have held affidavits departing substantially from the language required by CPLR § 2106 to be ineffective in the context of a motion for summary judgment (see, e.g., Great Lakes Ins. SE v Am. S.S. Owners Mut. Protection and Indem. Assn. Inc., 228 AD3d 429, 429 [1st Dept 2024] [affirmation inadmissible where made "under the penalties of perjury under the laws of the United States pursuant to 28 U.S.C. § 1746"]), here the court finds the language in the affirmation to be sufficiently close to the statutory language to constitute a proper affirmation.

To the extent that Petitioner argues that improper foundation has been laid for the court to consider the HPD and DOB records, the court disagrees. Even if the affirmation of Respondent's counsel is deficient in laying an evidentiary foundation for the documents as government records, all of the records are directly available at the official websites of the respective agencies, such that the court can take—and has taken—judicial notice of their authenticity (see MDL § 328 [3] [authorizing Housing Part to take judicial notice of HPD records]; Ouyang v Cromelin, 51 Misc 3d 26, 27 [App Term, 1st Dept 2016] [taking judicial notice of DOB records]).

Having addressed Petitioner's evidentiary objections, we turn to the substance of the motion. Respondent's argument for summary judgment relies upon Sections 301 and 302 of the Multiple Dwelling Law. Section 301 provides that "[n]o multiple dwelling shall be occupied in whole or in part" until the issuance of a certificate of occupancy, except under certain defined circumstances. Section 302(1) provides, in relevant part, that if a dwelling or structure is "occupied in whole or in part for human habitation" in violation of MDL § 301, then "[n]o rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent." Where a building is occupied without a CO under circumstances where one is required, or in violation of the applicable CO, no rent may be recovered or nonpayment proceeding commenced as against any residential tenant, even where the violation occurs elsewhere in the building (W. 47th Holdings LLC v Eliyahu, 64 Misc 3d 133(A) [App Term, 1st Dept 2019]).

The DOB and HPD records indicate that the subject building has no CO. But certificates of occupancy were not always required. Only after January 1, 1938, were certificates required, and buildings built prior to this date were effectively grandfathered in and exempted from the requirement to obtain a certificate of occupancy so long as the prior use and occupancy remained unchanged (see Matter of 345 W. 70th Tenants Corp. v New York City Envtl. Control Bd., 143 AD3d 654, 654 [1st Dept 2016] ["The inspection cards (I-cards) indicate that, as of January 1, [*4]1938, the subject cellar apartment was in use as a dwelling, establishing the apartment's legal use for that purpose."]; see also NYC Admin Code § 28-118.3.5 ["A building or open lot in existence prior to January 1, 1938 and heretofore legally used or occupied without a certificate of occupancy . . . may continue to be used or occupied without a certificate of occupancy . . . provided such use or occupancy is not inconsistent with the records of the department relating to the lawful use of such building . . . and provided there is no change in the existing use or occupancy classification of the building"]).

Here, Respondent argues that Petitioner has departed from the pre-1938 use and occupancy in two ways, each allegedly running afoul of MDL § 301 and triggering the rent bar of § 302. First, Respondent argues that Petitioner has subdivided the cellar into a number of additional residential units; and second, she argues that Respondent has replaced certain residential units on the first floor with doctors' offices. These arguments will each be considered in turn.

Beginning with the cellar, the building's I-Card ^[FN1] reflects that as of February 1914, the cellar included one residential unit of five rooms (see I-Card, NYSCEF Doc. No. 30). Respondent argues, with the support of several HPD and DOB records, that Petitioner's use of the cellar departed from that reflected in the I-Card, such that the building's occupancy violated § 301 absent a CO approving such use. Specifically, Respondent's motion refers to:

• an HPD vacate order dated August 29, 2022, applicable to Units 1, 2, 3 and 4 in the cellar on the basis of a condition HPD described as "ILLEGAL APARTMENT CREATED AT CELLAR [ . . . ] TWO ILLEGAL APARTMENTS AND TWO B-ROOMS USED FOR SLEEPING CREATED AT CELLAR" (NYSCEF Doc. No. 33);

• an HPD summary violation report reflecting several Class I violations in connection with the above-mentioned vacate order, noting that the cellar apartments "have been vacated by [HPD] and cannot be reoccupied until so ordered after proof of compliance"

(NYSCEF Doc. No. 28);

• a DOB Summons and Commissioner's Order, dated January 18, 2023, reflecting a violation for the following:

Occupancy contrary to that allowed by the Cert of Occupancy or Buildings Dept Records. Observed at Cellar elevation a storage room at south side of Cellar adjacent to superintendents apartment has been converted to an SRO which is occupied during inspection. Noted cooking equipment, 2 beds, 2 TV's and refrigerator present. No 2nd means of egress available.

(NYSCEF Doc. No. 34);

• a DOB Summons and Commissioner's Order, dated July 9, 2024, reflecting a violation for the following:

Occupancy Contrary to that Allowed By CofO And Department of Buildings Records. 42 Class "A" Apartments Illegally Converted to 43 Class "A" Apartments. Located At Cellar.

(NYSCEF Doc. No. 35).

HPD and DOB violations constitute admissible evidence for the facts they assert (see, [*5]e.g., Mackof v 407-413 Owners Corp., 19 Misc 3d 131[A] [App Term, 1st Dept 2008] [HPD violation created 'statutory presumption' of the existence and continuation of offensive odor]; King-Knights v Hall, 83 Misc 3d 130 [A] [App Term, 2d Dept 2024] [concluding on the basis of DOB violations that building contained more than six residential units and were thereby rent-stabilized, compelling dismissal]). In opposition to this part of the motion, Petitioner offered the affidavit of Mark Smith, an employee of Petitioner, who acknowledged the violation but argued that the current use of the basement unit was consistent with the one apartment, five room usage permitted by the I-Card (see Affidavit of Mark Smith, NYSCEF Doc. No. 41, ¶¶ 6-7). Smith also stated that Petitioner intended to challenge the violation at a hearing before DOB. The court takes judicial notice of the OATH/ECB Violation Summary for the 2024 DOB violation from DOB's website, which reflects that the violation was dismissed after hearing, with no monetary penalty imposed.

On the evidence before the court, while it seems likely that improper residential use of the cellar space was occurring in 2022, it is not clear to the court whether, or for how long, this improper use continued after imposition of HPD's vacate order. The petition seeks rent beginning only in November 2023, and if the improper use were discontinued prior to that time, MDL § 302 would not seem to apply (see 663 Madison Ice, LLC v Jansen, 87 Misc 3d 1211(A) [Civ Ct, Kings Cnty 2025] [finding § 302 inapplicable where illegal use was discontinued prior to period of nonpayment]). Therefore, on this issue, sufficient factual questions exist that the issue would need to be determined at trial.

Respondent's remaining argument, that use of certain space on the first floor of the building as doctors' offices triggered the § 302 rent bar, does not present a factual dispute. Respondent offers DOB violations reflecting the use of two formerly-residential apartments for medical offices with waiting rooms and multiple examination rooms in October 2022 and January 2025 (NYSCEF Doc. No. 29, 36). In opposition, Petitioner does not dispute these violations or the underlying facts. Rather, it argues that a CO violation for non-residential use of residential space does not violate § 302. Because the parties essentially agree on the relevant facts, the court is left with a question of pure law regarding whether the medical offices violate § 302.

While there is ample authority for the propositions that residential use not conforming with a CO bars collection of rent from residential tenants throughout a multiple dwelling (see W. 47th Holdings LLC v Eliyahu, 64 Misc 3d 133(A) [App Term, 1st Dept 2019]), and that commercial use inconsistent with a CO does not trigger § 302's rent bar with respect to commercial tenants (114 W. 26th St. Assoc., L.P. v Metropolis Fencing Sports Ctr. LLC, 15 Misc 3d 130(A) [App Term, 1st Dept 2007]), there appears to be no binding authority on the question of whether commercial use inconsistent with a CO bars rent collection as against residential tenants in the building. Neither party offers a case directly on point. The court's own research yields only a single decision addressing this issue, DLMC Inc. v. Helmholtz, 2019 NYLJ LEXIS 4640 (Civ Ct, NY Cnty, January 9, 2019). In Helmholtz, the Housing Court held after trial that the petitioner's use of first-floor space for a boxing gym rather than a store as permitted by the CO barred collection of rent from a residential tenant at the building under MDL § 302. The court noted the petitioner's argument "that the rent collection bar does not apply when the nonconforming use that violates the certificate of occupancy is commercial rather than residential[,]" but observed that the authorities proffered in support of the claim did not actually support it.

The most compelling argument in support of Petitioner's position relies upon a selective [*6]reading of § 302. The phrase "[i]f any dwelling or structure be occupied in whole or in part for human habitation in violation of [MDL § 301]," taken on its own, suggests that the rent bar is triggered only where the nonconforming use is residential in character. But considering §§ 301 and 302 together, the more plausible reading is that when § 302 speaks of occupancy "for human habitation" in violation of § 301, it refers not to the condition triggering nonconformity with a CO, but rather to any residential occupancy in a building that is out of compliance with its CO. In the absence of authority to the contrary, the court is persuaded by Helmholtz and a plain reading of the statutes that commercial use inconsistent with a building's CO (or I-Card) bars a landlord from recovering rent from residential tenants in the building. To be sure, this is a harsh consequence. But as the Court of Appeals has observed regarding the broad application of § 302's rent bar, "[i]f that is an undesirable result, the problem is one to be addressed by the Legislature" (Chazon, LLC v Maugenest, 19 NY3d 410, 416 [2012]).

As noted above, Respondent's motion for summary judgment includes DOB records of violations for nonconforming use over the period during which this proceeding was commenced and the rent sought herein accrued, and Petitioner does not dispute the substance of these violations. Because the court finds that that this nonconforming use rendered the building's residential occupancy in violation of MDL § 301, Petitioner is barred from maintaining this nonpayment proceeding. Therefore, Respondent's motion for summary judgment is granted, and the petition is dismissed.

THEREFORE, it is

ORDERED that Respondent's motion to amend her answer, deemed a motion to interpose a late answer, is granted; and

ORDERED that Respondent's motion for summary judgment is granted; and

ORDERED that the petition is dismissed.

This constitutes the decision and order of the court.