DOB Can't Prove Landlord Knew of Tenant's Illegal Transient Rental

DOB issued a violation notice to landlord based on NYC Admin. Code Section 28-210.3, which makes it unlawful to permit use or occupancy of a dwelling unit classified for permanent residence for other than permanent residence purposes. Landlord filed an Article 78 appeal of OATH's decision to uphold the violation.

The court ruled against landlord, who appealed and won. The lower court correctly determined that a landlord may be found to have permitted tenants to use their apartments for transient occupancy upon proof that it either had knowledge of such occupancy or had the opportunity to acquire knowledge of the transient occupancy through the exercise of reasonable diligence. But in this case, although DOB presented substantial proof that an apartment in landlord's building was used for transient occupancy, it failed to show that landlord had either actual knowledge or the opportunity through reasonable diligence to acquire such knowledge. Evidence of tenant's history of involvement in housing court cases involving a number of other buildings, the tenant's advertising with short-term rental businesses, and the availability of services that monitor tenant's use of apartments for short-term rentals wasn't part of the administrative record. It shouldn't have been considered by OATH.

JNPJ Tenth Ave, LLC v. DOB: 2019 NY Slip Op 09390, Index Nos. 10669, 100268/18 (App. Div. 1 Dept.; 12/26/19; Friedman, JP, Webber, Kern, Moulton, JJ)