Appeal from a final judgment of the Civil Court of the City of New York, Queens County (James R. Grayshaw, J.), entered August 18, 2006. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $11,520.

Final judgment modified by reducing the monetary award to the sum of $6,247.74; as so modified, affirmed without costs.

In this nonpayment proceeding, landlord seeks to recover arrears in rent from May 2005 through August 2006 at the rate of $800 per month. Tenant defends on the grounds that the building is an illegal multiple dwelling and that landlord breached the warranty of habitability. At trial, the Housing Court took judicial notice of the file of a previous nonpayment proceeding, in which landlord had sued for rent for May through November 2005. The file showed that the previous nonpayment proceeding was dismissed based on a finding that the premises was an illegal multiple dwelling. In addition, tenant introduced two November 5, 2005 notices of violation, indicating that the basement had been illegally converted to a third apartment. For his part, landlord introduced New York City Department of Buildings' approvals of his certificates of correction, indicating a cure date for the violations of December 10, 2005. Following trial, the court awarded landlord the rent sought from May 2005 at the rate of $720 per month, after a 10% abatement for the conditions in tenant's apartment. Citing 9 Montague Terrace Assoc. v Feuerer (191 Misc 2d 18 [App Term, 2d & 11th Jud Dists 2001]), the court reasoned that landlord's cure of the violation allowed for his retroactive [*2]recovery of rent.

The court erred in allowing the retroactive recovery of rent. In 9 Montague Terrace Assoc. v Feuerer (191 Misc 2d 18 [2001], supra), this court held that a landlord is permitted to retroactively recover rent where the building had been out of compliance with the registration requirements of Multiple Dwelling Law § 325 (2) and the landlord brought the building into compliance by registering the building. In contrast, where a building is converted to a multiple dwelling without complying with the certificate-of-occupancy requirements of Multiple Dwelling Law § 301, rent is not retroactively recoverable for the period of the noncompliance (Multiple Dwelling Law § 302 [1] [b]; Candela v Fried, 3 Misc 3d 136[A], 2004 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2004]; see e.g. Hart-Zafra v Singh, 16 AD3d 143 [2005]; Jalinos v Ramkalup, 255 AD2d 293 [1998]). Since it is res judicata that the subject building was an illegal multiple dwelling through November 2005, the rents accruing through that time are not recoverable. However, since landlord offered proof tending to show that the condition was cured on December 10, 2005, and tenant offered no proof to show that the condition continued to exist thereafter, landlord was entitled to recover the rents accruing after December 10, 2005. As the record does not justify an abatement greater than the 10% granted to tenant, landlord is entitled to recover rent at the rate of $720 per month for 21 days in December 2005, or $487.74, and for the eight months of January through August 2006, or $5,760, for a total of $6,247.74, and we modify the final judgment accordingly.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 03, 2008