Missry v. Ehlich

• Decision Date: 16 May 2003
• Citation: 765 N.Y.S.2d 176,1 Misc.3d 723
• Parties: MORRIS MISSRY et al., Doing Business as VICTORIA REALTY, Petitioners,<BR>v.<BR>EDWARD EHLICH et al., Respondents.
• Court: New York Civil Court

1 Misc.3d 723
765 N.Y.S.2d 176

MORRIS MISSRY et al., Doing Business as VICTORIA REALTY, Petitioners,
v.
EDWARD EHLICH et al., Respondents.

May 16, 2003.

[1 Misc.3d 724]

Silberman & Rhine, LLP, New York City (Arthur Rhine of counsel), for Edward Ehlich, respondent.

Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C., New York City (David R. Brody of counsel), for petitioners.

OPINION OF THE COURT

LUCY BILLINGS, J.

I. The Pending Motions A. Respondent's Motion for Summary Judgment

Respondent tenant Ehlich has moved for summary judgment dismissing this commercial nonpayment proceeding to recover possession of unit 3W at 112-114 West 14th Street, New York County. (CPLR 3212 [b].) Respondent alleges that the premises are an interim multiple dwelling (IMD) lacking a certificate of occupancy (CO) for residential use and in violation of the code compliance timetable for IMDs. (Multiple Dwelling Law §§ 281, 284 [1]; § 285 [1]; 29 RCNY 2-01 [c].) Absent a valid CO, petitioner landlords may neither collect rent nor prevail in a proceeding for possession based on nonpayment of rent until the legal defect is cured. (Multiple Dwelling Law § 302 [1] [b]; 468-470 Ninth Ave. Corp. v Randall, 199 AD2d 13 [1st Dept

[1 Misc.3d 725]

1993]; Jalinos v Ramkalup, 255 AD2d 293, 294 [2d Dept 1998]; see Zane v Kellner, 240 AD2d 208, 209 [1st Dept 1997]; Hornfeld v Gaare, 130 AD2d 398, 400 [1st Dept 1987].) While an IMD may qualify for an exemption from this bar, absent the IMD's legalization for residential use according to the statutory timetable, petitioners remain precluded from recovering rent or possession. (Multiple Dwelling Law § 284 [1]; § 285 [1]; 29 RCNY 2-01 [c]; County Dollar Corp. v Douglas, 161 AD2d 370, 371 [1st Dept 1990]; Goho Equities v Weiss, 149 Misc 2d 628, 630 [App Term, 1st Dept 1991]; Greeting Card Publs. v Spencer, 141 Misc 2d 800, 802 [Civ Ct, NY County 1988]; Cobra Resources v Dumpl, Inc., 138 Misc 2d 91, 94 [Civ Ct, NY County 1987].) Based on conflicting evidence, including respondent's own affidavit, regarding whether he has in fact used the loft unit for residential purposes and petitioners have condoned that use, the court has denied respondent's motion insofar as it seeks to dismiss the proceeding entirely. (Matter of Sara L., 249 AD2d 23 [1st Dept 1998]; Carlin v Crum & Forster Ins. Co., 191 AD2d 373 [1st Dept 1993]; King David Assoc. v Schonberger, 255 AD2d 423, 425 [2d Dept 1998]; see U.B.O. Realty Corp. v Mollica, 257 AD2d 460 [1st Dept 1999]; Metzendorf v 130 W. 57 Co., 132 AD2d 262, 265 [1st Dept 1987]; Ten Be Or Not Ten Be v Dibbs, NYLJ, June 12, 1985, at 11, col 4 [App Term, 1st Dept], affd 117 AD2d 1028 [1st Dept 1986].)

B. Petitioners' Motion for Summary Judgment

Petitioners, on the other hand, have cross-moved for summary judgment, alleging that respondent's unit has been used for commercial purposes since 1989, when, after evicting the residential occupants in 1988, petitioners filed an irrevocable restrictive covenant with the New York City Loft Board agreeing to maintain unit 3W as commercial for 15 years. (29 RCNY 2-08.1 [b] [formerly 2-08 (j) (2)].) In 1994, the Loft Board determined that petitioners were in compliance with the recorded covenant, and therefore unit 3W was not an IMD unit, based in part on an affidavit petitioners had procured from respondent that he was using the unit for commercial purposes.

In opposition, respondent relies on his current claim regarding the premises' status. First, he acknowledges that in 1988, before he moved into his loft unit, petitioners purchased its residential fixtures from the outgoing tenant for fair market value. This purchase of IMD unit improvements would have removed the unit from rent regulation, but for respondent's contention that the building housed at least five other residential units.

[1 Misc.3d 726]

(Multiple Dwelling Law § 286 [6].) He further contends that unit 3W continued to be used residentially until 1992, when he moved in. None of these allegations regarding occurrences predating respondent's occupancy, however, is on personal knowledge. (Thomas v Our Lady of Mercy Med. Ctr., 289 AD2d 37, 38 [1st Dept 2001]; Perez v Brux Cab Corp., 251 AD2d 157, 159 [1st Dept 1998]; Lardaro v New York City Bldrs. Group, 271 AD2d 574, 576 [2d Dept 2000].)

Since 1992, in any event, respondent alleges that he has used unit 3W for residential purposes and petitioners have condoned that use, in violation of the recorded restrictive covenant filed with the Loft Board. (See, e.g., 182 Fifth Ave. v Design Dev. Concepts, 300 AD2d 198, 199 [1st Dept 2002]; Tracto Equip. Corp. v White, NYLJ, Mar. 21, 1997, at 36, col 4 [App Term, 2d Dept]; 315 Berry St. Corp. v Huang, NYLJ, Feb. 5, 2003, at 21, col 5 [Civ Ct, Kings County].) He explains that petitioners, through fraud, duress, or undue influence, induced him to sign the 1994 affidavit of commercial use, by promising him subletting rights if he signed, threatening to make his tenancy miserable if he did not sign, and further promising never to use the affidavit against him. (...