Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

The Petitioner, GMT 3435 Realty LLC ("Petitioner"), commenced this nonpayment proceeding against Denver Hyman, ("Respondent"), in December 2022, alleging that Respondent was indebted to the Petitioner in the amount of $31,692.22 in rent and additional rent for Apartment # 2C at 3435 Olinville Avenue, Bronx, New York ("the subject premises") from December 2018 to October 2022. Respondent answered pro se on January 3, 2023, raising a general denial, alleging petitioner failed to do repairs, and claiming that the Respondent had applied for rental assistance. On March 23, 2023, Respondent, by counsel, amended his answer and asserted as defenses that the subject premises failed to have a proper certificate of occupancy from May 10, 2019, through March 2023, and that as a result, Petitioner could not collect rent from the Respondent during this period pursuant to Multiple Dwelling Law §§ 301(1), 302(1)(b). [*2]Both parties are represented by counsel.

Respondent filed the instant motion asking for an order dismissing the instant proceeding pursuant to CPLR §3211 (a)(7) and MDL §302 (1)(b), on the grounds the occupancy of the subject premises was illegal and therefore Petitioner was barred from maintaining this proceeding.

Respondent argues the proceeding must be dismissed on the grounds petitioner is precluded from collecting rent for the subject premises as the premises was occupied in a manner that violated the Certificate of Occupancy. Respondent points to the Environmental Control Board ("ECB") Violation 35415498Z (Respondent's Exhibit A), issued on May 10, 2019, which reads "occupancy contrary to that allowed by the certificate of occupancy or buildings department records." This violation specifically referenced sections of law that read,

No change shall be made to a building, open lot or portion thereof inconsistent with the last issued certificate of occupancy or, where applicable, inconsistent with the last issued certificate of completion for such building or open lot or which would bring it under some special provision of this code or other applicable laws or rules, unless and until the commissioner has issued a new or amended certificate of occupancy.

Further, Respondent states that since the issuing of this violation, New York City Department of Buildings ("DOB") has issued at least ten more violations (Respondent's Exhibit D) to Petitioner for its failure to correct and comply with the May 10, 2019 violation.

In opposition, Petitioner avers that the subject premises has at any time been illegally converted contrary to the certificate of occupancy specifications. In support, petitioner offers a copy of a certificate of inspection dated November 28, 2023, and a copy of a certificate of correction that petitioner submitted on December 4, 2023 to DOB. On February 28, 2024, the Petitioner filed an amended opposition and attached a document showing that on December 6, 2023, DOB had accepted Petitioner's December 4, 2023, certificate of occupancy for ECB Violation 35415498Z (Petitioner's Exhibit A).

Petitioner avers the approval of the certificate of correction (Petitioner's Exhibit A) from DOB allows them to recover the rent retroactively because the petitioner has brought the building into compliance.

The court notes respondent rejects the Petitioner's opposition, on the grounds petitioner it 19 days after the February 9, 2024 deadline. Petitioner had previously agreed to provide proof of compliance with the ECB Violation 35415498Z. (See NYSCEF Doc. 25) by that date. Respondent also notes the existence of ECB Violation Number 35415499K, an unresolved violation issued on May 10, 2019 (Respondent's Exhibit AA).

Multiple Dwelling Law ("MDL") §301 provides that "no multiple dwelling shall be occupied in whole or in part until the issuance of a certificate by the department that said dwelling conforms in all respects to the requirements of this chapter, to the building code and rules and to all other applicable law." The subsequent section of the MDL, §302 provides that an owner of a building in violation of §301 may be barred from collection of rent in cases where residential use is in violation of §301. Namely, MDL §302 states, in relevant part, that "if any dwelling or structure be occupied in whole or in part for human habitation in violation of section three hundred one, no rent shall be recovered by the owner of such premises for said period, and [*3]no action or special proceeding shall be maintained therefore, or for possession of said premises for nonpayment of such rent."

Prior to 2012, the courts of this department often found that there were limitations on the general application of MDL §302. Specifically, the courts looked to whether the following conditions were met: "(1) the C/O violation renders the tenant's residential occupancy unlawful; (2) the arrears sought are only for illegal units; and (3) the tenant is not complicit in the existence and maintenance of the illegal apartment." (58 East 130th Street LLC v. Mouton, 25 Misc 3d 509, 2009 NY Slip Op 29309 [Civ Ct, NY County 2009]; Hart-Zafra v. Singh, 16 AD3d 143 [1st Dept 2005]). In 2012, the Court of Appeals made it clear that no such limitation was mandated under the law in its decision in Chazon LLC v. Maugenest (19 NY3d 410 [2012]), stating that the limitation of the application of MDL §302 "may make sense from a practical point of view. But we find nothing in the opinions endorsing such results, nothing in the arguments of the landlord here, and nothing anywhere else to explain how they can be reconciled with the text of the statute. They simply cannot." (Id. at 415; see also West 47th Holdings LLC v. Eliyahu, 64 Misc 3d 133[A], 2019 NY Slip Op 51066[U] [App Term, 1st Dept 2019] ["If a dwelling or structure is 'occupied in whole or in part for human habitation in violation of [MDL 301] [n] rent shall be recovered by the owner of such premises and no action or special proceeding shall be maintained therefore, or for possession of said premises for nonpayment such rent.' This is such a proceeding, and it is barred, even if tenant's apartment was not one of the newly created apartments."]; GVS Properties LLC v. Vargas, 59 Misc 3d 128 [A], 2018 NY Slip Op 50396[U] [App Term, 1st Dept 2016] aff'd 172 AD3d 466 [1st Dept 2019]; 49 Bleeker, Inc v Gatien, 157 AD3d 619 [1st Dept 2018].

In the case at bar, petitioner has resolved Violation 35415498Z, but Violation 35415499K remains open. The very existence of an open ECB violation that states the premises is being occupied in a manner contrary to the certificate of occupancy mandates dismissal of this action pursuant to CPLR §3211(a)(7), MDL §301, and MDL §302.

In arguendo even if no violations remain open, the second issue before this court is whether petitioner can retroactively collect rent for the period where it was in violation of its certificate of occupancy and subsequently removed the violation. Petitioner asserts it can retroactively collect and erroneously relies on Misir v Gilbert, 19 Misc 3d 136(A) [App Term 2008]. In fact, the Misir court modified the trial court's decision, and did not allow the landlord's retroactive rent collection, but instead permitted the landlord to collect rent prospectively from the resolution of the certificate of occupancy. (Misir, 19 Misc 3d 136[A] at 1). The petitioner also misguidedly relies on 9 Montague Terrace Assoc. v Feuerer, 191 Misc 2d 18, 19 [App Term 2001].

9 Montague Terrace Association is distinct from the case at bar, as the current case is concerned with a violation of a certificate of occupancy, an issue under MDL §§ 301(1), 302(1)(b), while 9 Montague Terrace Association involves a multiple dwelling registration statement and a violation under Multiple Dwelling Law § 325.

In the matter at bar the petitioner seeks to retroactively collect rent for the period prior the petitioner's resolution of its ECB Violation 35415498Z. The appellate term has made it clear this is impermissible as noted in Candela v. Fried, 3 Misc 3d 136[A] [App Term 2004]. The Candela court held that the landlord was entitled to arrears for the period starting from the resolution of violation but not the arrears during the violation.

Due to the presence of the open ECB violation 35415499K stating that the occupancy of the subject building is in violation of the Certificate of Occupancy, and in accordance with the aforementioned cases the Petitioner cannot collect rent for the period where ECB violation 35415498Z existed. Accordingly, Respondent's motion to dismiss is granted and the proceeding is dismissed without prejudice. The court need not reach Respondent's other requests for relief in its motion. This constitutes the Decision and Order of this court.