Noa-Lior LLC v Farrell

Civil Court of the City of New York, Bronx County

Decided on April 22, 2026

Index No. LT-322197-24/BX

Diane E. Lutwak, J.

This is a nonpayment proceeding under New York State Real Property Actions and Proceedings Law (RPAPL) § 711(2) commenced by Noa-Lior LLC (Petitioner) by petition dated June 14, 2024 seeking rent arrears of $24,396.73 from Zalika Farrell (Respondent), the Rent Stabilized tenant in Apartment #7C at 2086 Valentine Avenue in the Bronx. The petition alleges that the last lease between the parties was for the term of June 1, 2023 through May 31, 2024, with a monthly rent of $2370.62, and that the arrears are comprised of $1074.41 for October 2022; $2296/month for November and December 2022; $1123.47/month for January 2023 through May 2023; and $1186.37/month for June 2023 through May 2024. In her answer, Respondent pro se raised a "general denial" and defenses of payment or partial payment and conditions in the apartment which Petitioner did not repair. The answer also includes the statement: "City FEPS has made some payments, but case has since been closed."

After settlement negotiations failed, first in the Resolution Part and then at pre-trial conferences in the Trial Part, the case proceeded to trial on January 2, 2026, February 27, 2026 and April 14, 2026. Petitioner appeared by counsel and Respondent appeared pro se.

TRIAL

[*2]Petitioner's Case

At trial, Petitioner presented its case through the testimony of Sol Paneth, who works for Petitioner's management company "Alliah Management", and documents admitted into evidence without objection. Petitioner is the owner and landlord of 2086 Valentine Avenue in the Bronx (the building) pursuant to a deed dated September 3, 2019 (Petitioner's Exhibit 1). The building is registered as a multiple dwelling with the New York City Department of Housing Preservation and Development (DHPD) and Respondent's apartment is Rent Stabilized and registered with the New York State Division of Housing and Community Renewal (DHCR)(Petitioner's Exhibits 2 and 3). Respondent moved into Apartment 7C under an initial lease for the period of June 1, 2022 through May 31, 2023 with a monthly rent of $2296 (Petitioner's Exhibit 3). That lease has been renewed once, for the one-year period of June 1, 2023 through May 31, 2024, with a monthly rent of $2370.62.

Petitioner's computer-generated rent ledger dated January 1, 2026 was admitted into evidence as Petitioner's Exhibit 6. The ledger shows that the last payment received was a "CityFHEPS" payment of $1184.25 on April 1, 2024; arrears as of May 2024 were $24,396.73, as stated in the Petition; and no payments have been received since then. As of January 2026 the arrears were $71,809.13; Petitioner asked that the Petition be amended to date requested entry of a judgment of possession and for $71,809.13 at the close of its prima facie case.

On cross-examination, in response to Respondent's questions about the number of bedrooms in her apartment Mr. Paneth answered that currently there is one and previously, up until November 3, 2025, there were two.

Respondent's Case

Respondent then presented her case through her own testimony and various documents. Respondent testified that she moved into the apartment in June 2022; she lives there with her three children; they moved in from a shelter with a "CityFHEPS" voucher for a two-bedroom apartment with a maximum rent of $2217; the lease for the apartment she was given at the shelter stated a monthly rent of $1987, not $2296; the rent increased after the lease was revised to correct the spelling of her name ("a piece of the original lease" she had saved - "Page 3 of 12" - showing a rent of $1987 was admitted into evidence over Petitioner's objection as Respondent's Exhibit B); and her last lease ended May 31 2024.

Regarding conditions in the apartment, Respondent testified that the landlord illegally converted the apartment from a one-bedroom to a two-bedroom at some point before she moved in, which she learned when an inspector came out to investigate after she filed a complaint through "3-1-1". She received a copy of a NYC Department of Buildings (DOB) Summons Number 039160274N dated September 11, 2025, admitted into evidence as Respondent's Exhibit A, which describes a violation for "Additional bedroom created in Apt. #7C by erecting full height nonbearing partition with entry door contrary to DOB approved plans # 220699705 (Dwg# A-008.05 dated 08/10/2022). Hot water in toilet tank in Apt. #7C. Remedy: Repair and or replace." The summons set a hearing date of November 21, 2025, indicated a "Maximum Penalty" of $500, and noted that this was a "Class 3" violation. Respondent stated her position that because the apartment was unlawful, the lease agreement should be deemed void and she shouldn't have to pay rent.

With regard to other conditions in the apartment, Respondent testified that the apartment did not look "ready' before she moved in, she told her caseworker about things that needed to be fixed, but they weren't. Regarding her refrigerator, Respondent testified that, "three different [*3]times they had to throw out my refrigerator", and she had to throw out groceries each time the refrigerator broke. The original one was very small; the freezer kept making noise and then "everything broke down" around September 2023. Another refrigerator, for which she had a receipt dated January 14, 2025, also broke. The apartment was infested with mice and roaches since 2023. The extermination services offered by the landlord did not resolve the infestations, which only stopped in October 2025 when she purchased and used her own extermination supplies. Other conditions in the apartment include holes throughout the apartment; a hole in the kitchen counter that has been there since she moved in; defective tiles on the kitchen walls; mold in her room and her daughter's room around the air conditioners and other locations; an unsecured shelf in her daughter's closet; and a broken closet rod.

On the second trial date, February 27, 2026, the court took judicial notice of information on the DHPD and DOB websites: On the DHPD website, for Respondent's apartment there were no current violations, although the "Complaints" section showed eight closed complaints dated May 28, 2024 and nine closed complaints dated June 3, 2024. The DOB website included a copy of Summons Number 039160274N (identical to Respondent's Exhibit A), a violation that had been resolved with a "Certification Submission Date" of November 12, 2025 and no penalty imposed. The DOB website describes "Class 3" violations as "Lesser violations"; "Class 1" violations are described as "Immediately Hazardous" and "Class 2" violations are described as "Major Violations".

On cross-examination, Respondent acknowledged that she had not paid rent in years; that she had made complaints to DHPD; that she was not sure if those complaints were closed; and that she did not construct the wall.

In response to the Court's questions, Respondent testified that the wall was there when she moved in and it was removed in November 2025.

Petitioner's Rebuttal Case

On rebuttal, Mr. Paneth testified that more rent had become due since the first trial date, and a current rent ledger was admitted into evidence as Petitioner's Exhibit 7, showing current arrears of $74,179.75. Petitioner asked that the Petition be amended to date.

Regarding the procedure for addressing requests for repairs, Mr. Paneth testified that "we try to schedule an appointment to repair it", and he was not aware of any current conditions needing repair in Respondent's apartment.

On cross-examination, Respondent again asked Mr. Paneth about the number of bedrooms in her apartment in June 2023 and he answered, "I assumed that based on the rent roll it was two." Mr. Paneth acknowledged that now the apartment has one bedroom.

On re-direct, when asked why there had been an additional bedroom Mr. Paneth answered that he did not know the reason, he took over management of the building a few years ago, the violation was corrected and the number of bedrooms reduced from two to one, and the apartment was supposed to be a one-bedroom in the first place.

The case was adjourned at the close of Mr. Paneth's rebuttal testimony to April 14, 2026 for completion of the trial or settlement. In the interim, Petitioner's counsel filed an Order to Show Cause (motion seq #3), which the court signed and made returnable April 14, 2026, seeking an order either striking any and all testimony and evidence in the trial record being used to support Respondent's defense that Petitioner is barred from collecting rent sought due to the [*4]DOB violation or otherwise dismissing that defense.^FN1

On April 14, 2026, both parties having completed the presentation of their claims and defenses, the case was marked "reserved decision" and Petitioner's Order to Show Cause was marked "submitted".

DISCUSSION

There are three questions for this Court to decide. First is whether the Court should grant Respondent's request to dismiss the proceeding based on the existence of the illegal partition which created a second bedroom, followed by the removal of the partition on November 21, 2025 after DOB placed a violation on September 11, 2025, resulting in a reduction of the number of bedrooms in the apartment from two to one. Second is whether to grant Petitioner's request to amend the Petition to date, despite there being no lease between the parties after May 2024. Third, as to any months for which the Court finds Respondent to be responsible for unpaid rent, whether Respondent is entitled to a rent abatement based on her claim of breach of the warranty of habitability.

Regarding the DOB violation, New York State Multiple Dwelling Law (MDL) § 301 provides, "no multiple dwelling shall be occupied in whole or in part until the issuance of a certificate by the department that said dwelling conforms in all respects to the requirements of this chapter, to the building code and rules and to all other applicable law." MDL § 302 provides the penalty: "If any dwelling or structure be occupied in whole or in part for human habitation in violation of [MDL § 301], no rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefore, or for possession of said premises for nonpayment of such rent." See Chazon, LLC v Maugenest (19 NY3d 410, 971 NE2d 852, 948 NYS2d 571 [2012]).

For example, in Matter of GVS Props LLC v Vargas (172 AD3d 466, 100 NYS3d 230 [1st Dep't 2019], aff'g 59 Misc 3d 128[A], 100 NYS3d 609 [App Term 1st Dep't 2018]), which found that Chazon, LLC was not limited to Loft Law cases, the Appellate Division upheld the dismissal of nineteen nonpayment proceedings under MDL §§ 301 and 302 where a formerly 53-unit residential apartment building had been converted to a 60-unit building for which there was no valid Certificate of Occupancy. See also, e.g., 789 St Marks Realty Corp v Blakely (2025 NY Slip Op 34468[U], 3 [Civ Ct Kings Co 2025])("Due to the undisputed open ECB violations stating the occupancy of the subject building is in violation of the Certificate of Occupancy, from at least April 25, 2008, to August 14, 2025, petitioner cannot collect rent in this proceeding").

This Court analyzed and determined a similar issue in the case of 1245 Stratford, LLC v Osboume (84 Misc 3d 1228[A], 221 NYS3d 924 [Civ Ct Bx Co 2024]), a nonpayment proceeding against a tenant in a 70-unit residential apartment building which had two DOB violations: (1) one for erection of partitions subdividing the living rooms in two apartments, categorized, as is the violation at issue in the case now before this Court, as "Severity Class 3"; and (2) one for creation of four "SROs" (single-room occupancy units) with locking devices in another apartment, thereby increasing the legally authorized number of dwelling units in the [*5]building, categorized as "Severity Class 2". While the building at 1245 Stratford Avenue had no Certificate of Occupancy as it had been constructed prior to 1929, the second violation clearly stated on its face that it was based on, "[r]esidence altered as a dwelling for more than the number of families legally authorized by the C of O or official records ," (emphasis added) and this Court dismissed that case under MDL §§ 301 and 302 based on the second violation. In doing so, this Court specified that it was not addressing the question of whether the violation for room-dividing partitions in two other apartments warranted dismissal under MDL §§ 301 and 302. This is the question now before this Court.

Here, the DOB violation is for, "Additional bedroom created in Apt. #7C by erecting full height nonbearing partition with entry door contrary to DOB approved plans". Significantly, unlike the violations at issue in the 1245 Stratford and 789 St Marks Realty cases cited above, the partition violation in this case - categorized by DOB as a Class 3 "lesser violation" - did not mention the Certificate of Occupancy or otherwise indicate that there had been an increase in the legally authorized number of dwelling units in the building. The violation as described in the summons and other DOB records of which this Court took judicial notice also makes no mention of any condition caused by the partition wall implicating the public policy noted in MDL § 2 ("Legislative finding"): To establish and maintain "proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards" for multiple dwellings. Accordingly, on the facts presented, this Court finds that the DOB violation for the partition wall in Respondent's apartment did not implicate Multiple Dwelling Law §§ 301 and 302.

It was understandably upsetting and a significant inconvenience for Respondent and her three children to find themselves as of November 21, 2025 suddenly living in a one-bedroom apartment as opposed to a two-bedroom apartment. However, on the facts presented the Court cannot find that the existence of the partition wall and its subsequent removal translates into a voiding of Respondent's obligation to pay rent while continuing to live in the apartment, either for the period before the violation was discovered when she was living in a two-bedroom apartment or for the period after the partition was removed and the apartment was restored to its legal status as a one-bedroom apartment.

Whether Respondent should have been given an opportunity to break her lease and vacate the apartment, or to renegotiate the lease and reduce the amount of rent charged after the apartment was converted from a two-bedroom to a one-bedroom apartment, are questions this Court need not reach, given the absence of a lease between the parties after May 31, 2024, the effect of which is the next question this Court will address.

Turning to Petitioner's request to amend the Petition to date, certainly, the general rule is that permission to amend pleadings should 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, 459 NE2d 164,165, 471 NYS2d 55, 56 [1983]), quoting CPLR § 3025(b). However, it also is fundamental that a nonpayment proceeding must be predicated on a default in rent owed "pursuant to the agreement under which the premises are held". RPAPL § 711[2]. Proof of an agreement to pay rent is an element of a petitioner-landlord's prima facie case. As explained by the Court of Appeals, where there is no lease between the parties or holdover tenancy evidenced by rent payment, "the landlord's remedy is limited to removal of the tenant and damages, both incidental and for use and occupation. An action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant and never paid by tenant, does not lie, there being no tenancy in fact or at law obligating the tenant for such rent." Jaroslow v Lehigh Valley [*6]R Co (23 NY2d 991, 993, 298 NYS2d 999, 1000, 246 NE2d 757 [1969]). See also, e.g., 6 W 20th St Tenants Corp v Dezertzov (75 Misc 3d 135[A], 169 NYS3d 778 [App Term 1st Dep't 2022]); W 152nd Assocs, LP v Gassama (65 Misc 3d 155[A], 119 NYS3d 801 [App Term 1st Dep't 2019]).

Here, it is undisputed that the last lease between the parties ran through May 31, 2024, and no rent was paid by or on behalf of Respondent after that lease ended. Unlike 2 No 6th Pl Prop Owner LLC v Golriz (81 Misc 3d 1247[A], 204 NYS3d 732 [Civ Ct Kings Co 2024]), where the court granted the petitioner-landlord's motion to amend a nonpayment petition to date, there was no evidence presented in this case to show that at any time during the course of this proceeding the parties executed a renewal lease retroactive to June 1, 2024. Accordingly, while Petitioner is entitled to a judgment for unpaid rent due through May 31, 2024 in this case, its request to amend the Petition to date must be denied, without prejudice to its right to seek use and occupancy for months after May 2024 in another proceeding under a theory of quantum meruit. 33-39 E 65th St, LLC v McEntyre (39 Misc 3d 1210[A], 971 NYS2d 75 [Civ Ct NY Co 2013]).

Respondent also claims that she is entitled to a rent abatement because of the landlord's breach of the warranty of habitability. New York Real Property Law § 235-b provides for an implied warranty of habitability which requires landlords of residential premises to keep them "fit for human habitation" and free of conditions that are dangerous to the life, health or safety of the tenants. Park West Management Corp v Mitchell (47 NY2d 316, 327, 391 NE2d 1288, 1294-1295, 418 NYS2d 310, 317 [1979]). The measure of damages for breach of the warranty of habitability is the difference between the rent reserved in the lease and the fair market rent value during the period of the breach. Park West Management Corp v Mitchell, supra. To establish liability, a tenant must show that the landlord had actual or constructive notice of the breach of the warranty of habitability. Nachajski v Siwiec (31 Misc 3d 150[A], 934 NYS2d 35, 2011 NY Slip Op 51118[U] [App Term 2nd Dep't 2011])(affirming lower court's determination after trial that tenant had failed to establish her defense of breach of the warranty of habitability because, among other things, she had failed to notify landlords of the alleged conditions needing repair).

Here, Respondent failed to present any evidence that she notified the landlord of any conditions in her apartment through May 2024 other than the refrigerators. As to the refrigerators, while she must have given notice — she testified that Petitioner replaced them three times — Respondent presented no details as to when they broke and how long she had to wait until Petitioner replaced them. As to other conditions Respondent testified about — infestations of mice and roaches, holes throughout the apartment, defective tiles in the kitchen, mold in various locations, a broken closet shelf and rod - she did not testify to any conversations she had with, or written communications she sent to, any agent of the landlord about these conditions or any attempts she made to schedule access for repairs. The DHPD website shows that complaints were filed with that agency about conditions in Respondent's apartment; however, the earliest complaint date was May 28, 2024, three days before the end of Respondent's last lease. Notice to the landlord is one of the required elements of a breach of warranty of habitability claim; without proof of such notice no abatement can be awarded.

CONCLUSION

Accordingly, based on the evidence presented at trial, Petitioner is entitled to a final judgment of possession and a money judgment for $24,396.73 against Respondent Zalika Farrell [*7]for rent due through May 31, 2024, without prejudice to any claims Petitioner has for monies due after May 2024 and Respondent's defenses thereto. The warrant of eviction shall issue forthwith, execution stayed through April 28, 2026, "earliest execution date" under RPAPL § 749(1) of April 29, 2026. Petitioner may seek a default judgment against the non-appearing Respondents through the Warrant Department.

This constitutes the Decision and Order of the Court, copies of which are being uploaded on NYSCEF and emailed to Respondent pro se. The parties may pick up documents they submitted into evidence as trial exhibits from the Part T Clerk in Room 528-B at 851 Grand Concourse, Bronx, New York within thirty days, or they may thereafter be disposed of in accordance with Administrative Directives.

Diane E. Lutwak, HCJ

Dated: April 22, 2026

Bronx, New York