Landlord Can't Collect U&O While Ejectment Case Pending

Prior landlord sued to eject tenant. New landlord later asked the court for permission to substitute into the case as the plaintiff, and also asked the court to direct tenant to pay past, present, and future use and occupancy while the case was pending. Landlord claimed that tenant currently owed over $167,000 in unpaid u&o. Tenant in turn asked the court to dismiss the case.

The court ruled for landlord in part. Landlord showed that it had bought the building and was entitled to continue the case started by prior landlord. But there was no dispute that tenant's apartment was an illegal dwelling in its current form. Although there was a certificate of occupancy for the building that permitted residential apartment use of the ground floor, the C of O didn't include tenant's apartment. Under MDL Section 302, rent can't be collected while there was no conforming C of O. So landlord couldn't recover rent or u&o for tenant's apartment at this time. The court denied tenant's motion to dismiss the case.

933 Amsterdam Holdings LLC v. Jenkins: Index No. 155045/2019, 2024 NY Slip Op 31526(U)(Sup. Ct. NY; 4/30/24; Headley, J)