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Nonpayment petition: LL has no Cert of Occupancy and no HPD

NYC Housing Court Practice/Procedures

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Nonpayment petition: LL has no Cert of Occupancy and no HPD

Postby brooklynsweetypie » Wed Dec 18, 2013 2:59 pm

Good afternoon,

My LL served me with a Nonpayment petition. I owe partial payment for the past few months totaling about $2000 . I have never been comfortable with this landlord because he purchased the building like 2 years ago and was using the address but not residing there, actually stating he lives in my apartment...I did not give him authorization/permission to do so. He has confirmed this verbally and he receives mail to my building addressed to may apartment. In doing research for our case I have confirmed there is no active apartment registration with HPD and no Certificate of Occupancy on file at all. It appears he started to register in 2012 but never completed the process. Is he entitled to the rent as it appears this would make this an "illegal apartment" as per what I saw on the NYC Court website? Also can I countersue for rent monies already paid? This si my first time ging through this and want to make sure I am doing the right thing.
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Postby TenantNet » Wed Dec 18, 2013 4:03 pm

First, you don't indicate if the unit is Rent Stab or not. If it is - or if you suspect it is - or if the LL might be lying to you about the RS status, then there might be issues with the required DHCR registration. That can impact a non-pay case in a big way, especially if the rent they are charging is illegal.

I would get a rent history from DHCR ASAP to see what that is all about. Too many units are deregulated illegally, or tenants are told they are not RS, when they are. If this is the case, you might have a claim (or defense and counterclaim) of rent overcharge.

A Certificate of Occupancy is not always required, and it depends on when the building was constructed, the zoning and any alterations over the years. That would likely have little or no impact on your case.

However, all residential buildings are required by the Housing Maintenance Code to be registered with HPD. (do not confuse this with DHCR - the HPD registration is for all buildings, even those with no RS units). This is known as the Multiple Dwelling Registration (MDR) and is required to be posted in the building's lobby.

It used to be that lack of a MDR would stop a case in its tracks. But no more.

Proof of the plaintiff's compliance with the Multiple Dwelling Law registration requirements cured any defects in the registration of the subject multiple dwelling, and thus, the plaintiff's prior noncompliance does not bar recovery of retroactive rent (see Chan v Adossa, 195 Misc 2d 590, 593 [2003]; 9 Montague Terrace Assoc. v Feuerer, 191 Misc 2d 18, 21 [2001])

http://scholar.google.no/scholar_case?c ... s_sdt=4,33


But you should still raise the issue. You might get lucky, and it can complicate things for the LL and get you more time, it that's an issue.

Another source we found has this:

FAILURE TO REGISTER BUILDING AS A MULTIPLE DWELLING. Note: will not result in dismissal; Landlord can prove compliance and will even be allowed to show post-commencement compliance.

a. See 128 East 83rd St. v. Kagan, N.Y.L.J., Oct. 6, 1987, at 14, col. 1 (App. Term 1st Dept.); and 9 Montague Terrace Assoc. v. Feuerer, 191 Misc.2d 18, 740 N.Y.S.2d 553 (App. Term 2nd Dept. 2001). Landlord may now recover retroactive rent upon compliance in both 1st and 2nd Departments.

b. Cannot maintain nonpayment proceeding against tenant in unaffected unit until building has a valid registration reflecting all units. Mannino v. Fielder, 165 Misc.2d 605, 629 N.Y.S.2d 651 (Civ. Ct. Kings Co. 1995). CAVEAT: There is case law that states that if tenant knew of illegality or lived in unaffected unit, can proceed against that tenant.
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Postby brooklynsweetypie » Wed Dec 18, 2013 5:57 pm

Thank you SO much for the reply. The building is not rent stabilized, I checked. I called HPD about the apartment registration and when he made an attempt to register teh building in 2012, it was rejected because of "invalidated owner" as per the rep I spoke with. The application was never completed and the building never registered. The building was constructed in 1955 and a three family dwelling subject to a certificate of occupancy but none on file. I'm wondering/concerned if the confusion is related to him using the address as a residence when he does not actually(never) resides there?
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Postby TenantNet » Wed Dec 18, 2013 6:13 pm

I don't know, but I would raise the issue, either by application or motion to dismiss the proceeding (technically for failure to state a cause of action) on the grounds of not having any (or a valid) MDR, or CoO.

You never know.
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