Corbin v. Briley

192 Misc. 2d 503, 747 N.Y.S.2d 134, 2002 N.Y. Misc. LEXIS 1140

Opinion

OPINION OF THE COURT

Memorandum.

Final judgment reversed without costs and matter remanded to the court below for further proceedings.

Following landlord’s concession that he lacked a proper certificate of occupancy for the subject premises, certified for single-family occupancy but operated as a de facto multiple dwelling (Multiple Residence Law § 4 [4]; § 302 [1]), the court denied landlord a money judgment, citing Multiple Dwelling Law § 302 (1) (b) and § 325 (2), but granted him possession. However, the Multiple Dwelling Law does not apply to Yonkers (see, Multiple Dwelling Law § 3 [1]), and, thus, the absence of such a certificate does not preclude the commencement of a nonpayment proceeding (e.g., Brown v Williams, 132 Misc 2d 438, 439). To the extent that Anilesh v Williams (NYLJ, Nov. 15, 1995, at 25, col 2) and Bartolomeo v Runco (162 Misc 2d 485) hold to the contrary, they should not be followed.

In any event, absent a default in rent, the court could not award landlord possession in a nonpayment proceeding (RPAPL 711 [2]; Papaleo v Gentle, NYLJ, Oct. 9, 2001, at 26, col 4 [App Term, 9th & 10th Jud Dists]). If, as tenant alleges, the court implicitly converted the nonpayment proceeding to a holdover proceeding, this also was inappropriate under the circumstances presented, which include the absence of a termination notice. Consent to such a conversion will not be inferred from these unrepresented litigants’ silence (Luciano v Pironti, NYLJ, May 30, 2001, at 20, col 2 [App Term, 9th & 10th Jud Dists]).

Floyd, P.J., and Doyle, J., concur; Colabella, J., taking no part.