468-470 Ninth Avenue Corp. v. Randall

199 A.D.2d 13, 604 N.Y.S.2d 101, 1993 N.Y. App. Div. LEXIS 11172

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1993
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter M. Schackman, J.), entered February 2, 1993, which denied plaintiffs motion for, inter alia, use and occupancy, and denied the motion of defendant-cross-appellant David McGrath for summary judgment on the eleventh affirmative defense and fifth counterclaim, unanimously affirmed, without costs.

According to the uncontroverted evidence submitted by the moving defendants, the units in question were converted to residential use in 1981. The owner’s blanket denial of knowledge of the conversions is insufficient to rebut the detailed affidavits submitted by the tenants demonstrating not only knowledge of and acquiescence on the part of plaintiffs principal in the residential use of the premises, but also his active encouragement and participation in the renovation process. This is precisely the type of situation addressed by the Legislature in article 7-C of the Multiple Dwelling Law, and although none of the parties to the instant cross appeals argue that the statute is directly applicable, the essentially unrebutted allegations of the landlord’s complicity and the lack of evidence upon the record to demonstrate any effort to comply with registration and certificate of occupancy requirements, or other statutory or regulatory provisions, preclude recovery for use and occupancy at this juncture (see, Hornfeld v Gaare, 130 AD2d 398, 400). In light of the conflicting nature of the affidavits, however, and given the need to assess issues of credibility, summary judgment to defendant-cross-appellant properly was denied. Concur—Sullivan, J. P., Carro, Rosenberger, Ross and Asch, JJ.