Court Denies Tenant's Claim of Invalid C of O in Nonpayment Case

Landlord sued tenant, seeking payment of rent arrears. The court ruled for landlord, and tenant appealed. Tenant claimed that the building didn't have a valid Certificate of Occupancy (C of O), so landlord couldn't seek rent arrears under Multiple Dwelling Law Sections 301 and 302.

The appeals court ruled against tenant. Tenant pointed out that the C of O had been revoked by an October 2017 resolution of the NYC Board of Standards and Appeals. This raised an issue as to whether the C of O was valid. But the appeals court found that tenant's defense was barred in the alternative by the effect of a June 2018 court decision that had denied his request to vacate a default judgment in a prior nonpayment proceeding brought by landlord. In that case, tenant also claimed that the building lacked a valid C of O, but the housing court ruled that the building did, in fact, have a valid C of O during the relevant period, under the alternative address for the same tax lot. And tenant didn't appeal that decision. He was therefore barred by the doctrine of res judicata from asserting the same defense in this case. 

Sky East, LLC v. Franco: Index No. 150259/19, App. No. 15289, Case No. 2021-02125, 2022 NY Slip Op 02766, NYLJ 4/28/22 p. 21 col. 2 (App. Div. 1 Dept.; 4/26/22; Kapnick, JP, Webber, Gesmer, Scarpulla, Shulman, JJ)