Opinion
LT 51741/06.
Decided on March 23, 2007.
Petitioner commenced this nonpayment summary proceeding in January 2006 seeking rent arrears of approximately Ten Thousand, Three Hundred Eighty dollars ($10,380) accumulated between January 2004 and January 2006.
In February 2006 Respondent acknowledged owing $8,807.52 as all arrears through February. Respondent was lawfully evicted from the premises in the early part of August. Respondent's instant post eviction Order to Show Cause seeks restoration to the subject premises alleging that Petitioner's Multiple Dwelling Registration (hereinafter "MDR") lapsed during the course of this proceeding and thus Petitioner is not entitled to the recovery of all the rental arrears. To this issue the Court responds in the negative.
SALIENT FACTS
Respondent Brown resided at 512 Eastern Parkway, Apartment 3B, Brooklyn, New York. Throughout the course of this proceeding Respondent never became current with his rent arrears. Despite his efforts to make some payments, Respondent's arrears averaged $8,000 from the inception of this proceeding through the August eviction. In June of 2006 this Court further extended the stay of execution of the warrant to July 21, 2006 for payment of $8,060 which reflected all arrears through June 2006.
The Court file discloses that after nine (9) Orders to Show Cause, Respondent's claim of a lapsed MDR is being raised for the first time in this, his third post eviction Order to Show Cause.
DISCUSSION
In essence, Respondent's motion claims that Petitioner was not entitled to collect rent as of August 2006 as the MDR had lapsed and the subject building was not properly registered as a multiple dwelling with the Department of Housing Preservation and Development (hereinafter referred to as DHPD). When Petitioner commenced this proceeding a proper MDR was in effect. Petitioner is required by law to register the premises on an annual basis.
Prior to May 2006, the building had been properly registered and according to Petitioner's officer, Robert Thomas, a proper MDR renewal and the requisite filing fee were timely forwarded to DHPD. It is acknowledged that Petitioner's check was cashed by DHPD. Shortly thereafter the MDR was returned to Petitioner for additional information. The corrected MDR was mailed to DHPD sometime in May 2006.
Petitioner later discovered that DHPD had not properly processed the MDR. The third MDR submitted by Petitioner was finally accepted by DHPD, entered into its computer database and was recorded in October 2006 correcting any deficiencies or lack of information.
LEGAL ANALYSIS
Based upon the lapsed MDR, Respondent seeks statutory sanctions and to deprive Petitioner of the rent arrears accumulated during the period of the lapsed registration citing NYC Code § 27-2098(a)(3) and NYC Code § 27-2107(b). Respondent argues that Appellate authority in the Second Department "universally holds that the foregoing provisions of law bar noncompliant landlords from recovering rent during the period of noncompliance."
In Jalinos v. Ramkalup, 255 AD2d 293, (1998) the Appellate Division held that an owner of a two family home which contained three separate apartments, one of which was occupied by the defendant, constituted a de facto multiple dwelling as defined in Multiple Dwelling Law §§ 4(1) and (7). Thus, an owner of a de facto multiple dwelling who fails to obtain a certificate of occupancy or comply with the registration requirements cannot recover rent or money for use and occupancy. (MDL §§ 302 (1)(b); 325(2)). However, see Dawkins v. Ruff, 10 Misc 3d 88, dissenting opinion by J. Patterson at p. 90. The instant matter is easily distinguishable from the foregoing.
It is well established in law that the issue of a building's multiple dwelling registration is a non jurisdictional defect and in a nonpayment proceeding, can be amended at any time. Nadel v. Mehmood 2002 WL 1837877, AT 2nd 11th Jud. Dists., 9 Montague Terrace Assoc. v. Feuer, 191 Misc 2d 18 (2001). It is equally well established that the owner is entitled to collect all monies retroactively even for those periods during which the registration lapsed. Additionally, once the petitioner has cured any defects, the tenant cannot raise the issue of prior noncompliance. (See Nadel v. Mehmood, supra). In that case the Second Department stated "Contrary to tenants contention upon establishing that the building was currently registered as a multiple dwelling the landlords were entitled to recover the accrued rent arrears without having to establish that multiple dwelling registration was in effect for the entire period during which the arrears occurred."
In 346-52nd Realty, LLC v. La Estancia, Ltd., 7 Misc 3d 134(a), AT 2nd Dept. (2005), the Second Department ruled that ". . . tenant failed to demonstrate legal cause to vacate the so-ordered settlement stipulation entered into upon the advice of counsel. (See Hallock v. State of New York, 64 NY2d 224, 230. . . . Further, the petitioner landlord's noncompliance with the registration requirements of the Multiple Dwelling Law did not implicate the Civil Court's subject matter jurisdiction and was waived by the tenant by virtue of its execution of the settlement stipulation. (see Meaders v. Jones, 15 AD3d 490)."
In the case at bar, Respondent's execution of multiple stipulations failed to raise the issue of a lapsed MDR. Respondent cannot properly contend that the mere lapse of the MDR adversely impacted on his tenancy, or his ability or lack thereof to raise the funds necessary to prevent his eviction.
Reiterating the previously stated, Respondent never raised the issue of a lapsed MDR. Consequently, he cannot at this juncture attempt to seize on a minor technicality and use it as a sword thereby providing the tenant unjust enrichment. Indeed Respondent, by his actions and execution of multiple stipulations waived his right to contest the period of non-compliance. ( 104 Realty Co. v. Pay, NYLJ Dec. 18, 1996, p. 30, col. 2, Meaders v. Jones, 2003 WL 21699947, AT 2nd Dept.).
In 9 Montague Terrace Assoc. v. Feuer, supra, the Second Department reached the following conclusion in relation to Multiple Dwelling Law § 325(2):
"2. In any city of over one million which, by local law, requires the registration of owners of multiple dwellings and which prescribes penalties, remedies, and sanctions to be imposed for the violation of such local registration requirements, no rent shall be recovered by the owner of a multiple dwelling who fails to comply with such registration requirements until he complies with such requirements." "Standing alone, this provision is ambiguous as to whether a stay or an abatement of rents is intended. However, the fact that this provision was enacted at the behest of the City to clarify and confirm the power of the city *** to enact" the subject Housing Maintenance Code provision (Mem. of Legs. Representative of City of NY, 1968 McKinney's Session Laws of NY, at 2317, see, Hall v. Burroughs, 159 Misc 2d at 483 (1993) indicates that the Legislature intended only to confirm the power of the City to preclude the recovery of possession and to provide for a stay of proceedings to collect rent during the period of noncompliance. For the foregoing reason, we overrule Davis v. Priddie, NYLJ 3/25/80 p. 11 col. 1 (AT2nd Dept.), and hold that, upon registering, an owner is entitled to recover the rents which accrued during the period of noncompliance and can recover possession based on such nonpayment. While landlord here had registered at the time the motion to dismiss was made and thus was entitled to maintain this proceeding, it did not cross-appeal from the dismissal without prejudice."
In this proceeding it is undisputed that the building was properly registered at the time the judgment was entered and that any defects in the registration were cured prior to the lapsed MDR issue being raised.The parties specifically agreed that payments would first be applied to current rent then to arrears. The building was properly registered on April 26, 2006 when Respondent admitted that he owed $10,315.66 through April 2006. Respondent paid $6,305.00 of such amount, leaving a balance due through April 2006 of $4010.66. Subsequently Respondent stopped payment on three (3) one thousand dollar money orders thereby increasing the balance owed through April 2006 to $7010.66. The Court's June 21, 2006 order specifically denotes Respondent's payment of $760 as being for June 2006 use and occupancy, leaving a balance through June of $8060 not including July rent. The $760 paid as use and occupancy for June was the last payment Petitioner received prior to Respondent's lawful eviction. At the time of Respondent's eviction in August 2006 nearly $10,000 in arrears was owed. Any payment made by Respondent during the lapsed period of the MDR is construed as voluntary and bars any claim or cause of action to recover back rent or an installment of rent so paid. (See MDL Art. 9, §§ 302 and 325; Goho Equities v. Weiss, 149 Misc 2d 628, (1991); BSL Ave. Corp. v. Rubenstein, 159 Misc 2d 903 (1994).
Moreover, even if the MDR had temporarily lapsed, petitioner would still be entitled to collect both the entire judgment amount which accrued during the period of lapsed registration and receive monies voluntarily paid as current rent credited pursuant to the stipulation terms.
CONCLUSION
The Court has reviewed Respondent's remaining arguments and finds them to be without merit. Accordingly, Respondent's motion for restoration to the subject premises is denied.
This constitutes the decision and order of the Court.