Appeal by tenants from a final judgment of the Civil Court, Kings County (R. Birnbaum, J.), entered April 7, 2003, awarding landlords possession and the sum of $10,200.

Final judgment unanimously modified by striking the monetary award and matter remanded to the court below for a determination de novo of the rent and/or use and occupancy to be awarded to landlords in accordance with the decision herein; as so modified, affirmed without costs. [*2]

Landlords were collaterally estopped, by virtue of a Housing Court determination dated December 3, 2002, made in a prior proceeding, from denying that the building
was an illegal multiple dwelling as of December 3, 2002 because of the presence of an illegal basement apartment. Inasmuch as the building was a multiple dwelling prior to December 3, 2002 and did not have a certificate of occupancy as such, landlords are precluded from recovering rent and/or use and occupancy from tenants for the period of noncompliance (Multiple Dwelling Law § 302 [1] [b]; Jalinos v Ramkalup, 255 AD2d 293 [1998]; Hutchinson v Greski, NYLJ, June 5, 2002 [App Term, 2d & 11th Jud Dists]). Thus, instead of awarding landlords arrears for the period commencing in May 2002, the court below should properly have made a finding as to when the building ceased to be a multiple dwelling and should have awarded landlords arrears only as of that date. Accordingly, we strike the monetary award and remand the matter for a determination de novo of the amount of rent and/or use and occupancy owed.

We note, however, that if tenants have paid the arrears to landlords as a condition of a stay, the monies would be deemed to have been voluntarily paid (see Rosgro Realty Co. v Braynen, 70 Misc 2d 808 [1972]) and would not be recoverable by
tenants (Commercial Hotel v White, 194 Misc 2d 26 [2002] [rents voluntarily paid for period of noncompliance cannot be recovered]; Baer v Gotham Craftsman, 154 Misc 2d 490 [1992] [same]).
Decision Date: May 26, 2004