Landlord Can Eject Occupant of Illegal Cellar Apartment

Landlord sued to eject occupant from illegal cellar apartment. The apartment had been rented to occupant’s ex-wife in 1997. Occupant had been listed on the household composition form until 2006 when his name was removed. In 2008, the ex-wife told landlord she wished to terminate the lease and moved out. Although occupant hadn’t lived there for five years, he moved back in after the ex-wife moved out. In 2009, the DHCR dismissed occupant’s lease nonrenewal complaint based on his failure to provide requested information. Landlord asked the court to award judgment without a trial. The court refused. Landlord appealed and won. The building’s Certificate of Occupancy designated the unit as a superintendent’s apartment. Occupant wasn’t and never had been the building super. Landlord also offered him other apartments in other buildings, but he refused. Landlord was entitled to recover the apartment, having proved as a matter of law that residential occupancy of the cellar apartment was illegal. Landlord claimed that the apartment couldn’t be legalized, and occupant offered no proof to the contrary. Occupant also offered no proof that he ever paid any rent.

Progressive Realty Associates, LP v. White: 2015 NY Slip Op 05878, NYLJ No. 1202731694566 (App. Div. 1 Dept.; 7/7/15; Tom, JP, Sweeny, Andrias, Moskowitz, Gische, JJ)