| Sheila Props., Inc. v A Real Good Plumber, Inc. |
| 2009 NY Slip Op 00672 [59 AD3d 424] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Sheila Properties, Inc., Respondent, v A Real GoodPlumber, Inc., et al., Defendants, and Elizabeth Kelleher, Appellant. |
—[*1] Noel W. Hauser, New York, N.Y., for respondent.
In an action, inter alia, for ejectment, the defendant Elizabeth Kelleher appeals (1) from anorder of the Supreme Court, Kings County (Kurtz, R.), dated December 20, 2006, which, uponan order of the same court (Ruchelsman, J.), dated July 21, 2006, among other things, grantingthat branch of the plaintiff's motion which was for summary judgment on the issue of liability onthe cause of action to recover use and occupancy, and after a framed-issue hearing on the issueof damages, granted that branch of the plaintiff's motion which was for summary judgment onthe issue of damages to the extent of directing only a 10% decrease in her monthly obligation foruse and occupancy from the sum of $2,000 to the sum of $1,800, (2) from so much of an order ofthe same court dated March 2, 2007, as denied her cross motion pursuant to CPLR 3025 (b) forleave to amend her answer to add defenses related to, among other things, the Rent StabilizationLaw (Administrative Code of City of NY § 26-501 et seq.) and the Loft Law(Multiple Dwelling Law art 7-C) and conditionally granted the plaintiff's motion to renew thatbranch of its prior motion which was for summary judgment on the cause of action for ejectment,which had been determined in the order dated July 21, 2006, in the event that she did not pay theplaintiff the sum of $1,800 on or before March 15, 2007, and (3) from so much of an order of thesame court dated May 30, 2007 as granted that branch of the plaintiff's motion which was for anaward of use and occupancy retroactive to the commencement of the action.
Ordered that the order dated December 20, 2006 is reversed, on the law, without costs [*2]or disbursements, that branch of the plaintiff's motion which wasfor summary judgment on the issue of damages is denied, and so much of the order dated July21, 2006, as granted that branch of the plaintiff's motion which was for summary judgment onthe issue of liability on the cause of action to recover use and occupancy is vacated; and it isfurther,
Ordered that the order dated March 2, 2007 is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order dated May 30, 2007 is reversed insofar as appealed from, on the law,without costs or disbursements, and that branch of the plaintiff's motion which was for an awardof use and occupancy retroactive to the commencement of the action is denied.
The plaintiff is the owner of a building containing approximately 100 commercial/residentialunits, one of which was occupied by the defendant Elizabeth Kelleher (hereinafter thedefendant). The building therefore constitutes a multiple dwelling as defined by MultipleDwelling Law § 4 (1) and (7) (see Rosario v Koss, 26 AD2d 561 [1966],amended 26 AD2d 590 [1966]). The plaintiff commenced this action, inter alia, forejectment and to recover use and occupancy. The premises were being illegally used as amultiple dwelling without a proper certificate of occupancy or filed registration statement.
An owner of a de facto multiple dwelling who fails to obtain a proper certificate ofoccupancy or comply with the registration requirements of the Multiple Dwelling Law cannotrecover rent or use and occupancy (see Multiple Dwelling Law § 302 [1] [b];§ 325 [2]; Caldwell v AmericanPackage Co., Inc., 57 AD3d 15 [2008]; Jalinos v Ramkalup, 255 AD2d 293[1998]; 99 Commercial St. v Llewellyn, 240 AD2d 481, 483 [1997]). Consequently, theplaintiff is precluded from recovering use and occupancy. Therefore, the Supreme Court erred ingranting those branches of the plaintiff's motion which were for summary judgment on the issueof liability on the cause of action to recover use and occupancy, and for an additional award ofuse and occupancy retroactive to the commencement of the action.
The Supreme Court providently exercised its discretion in denying the defendant's crossmotion for leave to amend her answer to include defenses under, among other things, the RentStabilization Law (Administrative Code of City of NY § 26-501 et seq.) and theLoft Law (Multiple Dwelling Law art 7-C). Leave to amend a pleading should be freely given(see CPLR 3025 [b]), provided that the amendment is not palpably insufficient, does notprejudice or surprise the opposing party, and is not patently devoid of merit (see Ortega v Bisogno & Meyerson, 2AD3d 607 [2003]).
The Loft Law applies only to units that were occupied for residential purposes on April 1,1980 (see Multiple Dwelling Law § 281 [1]). Since the unit at issue here was notso occupied at that time, the Loft Law may not serve as a basis for a defense as a matter of law(see Caldwell v American Package Co., Inc., 57 AD3d at 21).
In order to obtain the protection offered by the Rent Stabilization Law for illegally convertedcommercial premises, a tenant must demonstrate that the owner acquiesced in the unlawfulconversion undertaken at the expense of the occupants, the premises were eligible for residentialuse by reason of the applicable zoning, and the owner, during the pendency of the proceeding inwhich the tenants sought Rent Stabilization Law protection, actually sought to legalize theresidential use (see Caldwell vAmerican Package Co., Inc., 57 AD3d 15 [2008]; Matter of 315 Berry St. Corp. v Hanson Fine Arts, 39 AD3d 656,657 [2007]). Here, the defendant concedes that the [*3]plaintiffhas not taken any steps to obtain a residential certificate of occupancy or otherwise obtain legalauthorization to convert the premises to such use during the pendency of this proceeding (seeMatter of 315 Berry St. Corp. v Hanson Fine Arts, 39 AD3d at 657).
Accordingly, the defendant's proposed amendment was patently without merit (see Caldwell v American Package Co.,Inc., 57 AD3d 15 [2008]), and the court thus correctly denied the defendant's crossmotion for leave to amend the answer. Mastro, J.P., Ritter, Carni and Eng, JJ., concur.