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Multiple Dwelling Registration with HPD (in NYC)

PostPosted: Tue Nov 22, 2016 1:37 pm
by TenantNet
Petition Fails to Properly Describe Premises; Dismissal of Nonpayment Action Granted.

Czarnomysy v. Nunez, 64498/16
November 23, 2016
Civil Court, Queens County, Housing Part A
Judge Jose Rodriguez

Cite as: Czarnomysy v. Nunez, 64498/16, NYLJ 1202772896852, at (Civ., QU, Decided November 9, 2016)


Mark Czarnomysy, Petitioner v. Maureen Nunez, Jessica Nunez, Tiffany Ramirez, John Doe, and Jane Doe, Respondents

Judge Jose Rodriguez
Decided: November 9, 2016

Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss.

Papers Numbered
Petition and Notice of Petition 1
Notice of Motion 2
Affirmation in Opposition 3


Petitioner commenced the instant summary nonpayment proceeding against respondents on June 14, 2016 by filing the Notice of Petition and Petition, alleging arrears of $4,100.00 due through June 2016. The Petition pleads, amongst other things, that the subject premises, 67-16 73rd Place, Apartment 3, Middle Village, New York, is a multiple dwelling and that there was "a currently effective registration statement on file with the Office of Code Enforcement…" at the time of commencement.

The instant proceeding first appeared on the court's calendar on August 16, 2016, but was adjourned to September 21, 2016 for respondents to seek legal counsel. On September 21, 2016, the matter was adjourned for trial. Respondent Maureen Nunez, via her attorney, now moves this court to dismiss the instant action, alleging that petitioner failed to properly describe the subject premises. Respondent further argues that petitioner failed to properly register said premises as a multiple dwelling and as a result it was not currently registered at the time of the commencement.

Petitioner opposes the motion, arguing that failure to register is a curable defect which can be remedied by petitioner's subsequent compliance.

RPAPL §741(3) states that the petition must "[d]escribe the premises from which removal is sought." Pursuant to 22 NYCRR 208.42(g), a petitioner in a summary proceeding must allege in its petition whether the subject premises is a multiple dwelling and if so that there is a "currently effective registration statement on file with the office of code enforcement…" See Mannino v. Fielder, 165 Misc.2d 605, 629 N.Y.S.2d 651 (1995); Goldstein v. Perez, 133 Misc.2d 303, 506 N.Y.S.2d 999 (1986). In a similar vein MDL §325(2) provides that "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." See Normal Realty Co. v. Rios, 109 Misc.2d 555, 440 N.Y.S.2d 442(1981); Mannino v. Fielder, supra. Failure to comply with MDL requirements is not fatal to summary holdover proceedings (Czerwinksi v. Hayes, 8 Misc.3d 89, 799 N.Y.S.2d 349 [2005]), but may be so in summary nonpayment proceedings as the primary purpose of the action is collection of rent. Id. at 92.

Here, the petition alleged that the subject premises was a currently registered multiple dwelling. However, the subject premises was not in fact registered with the DHPD when the instant proceeding was commenced.

While petitioner asserts that the error in the multiple dwelling registration was corrected, it does not alter the fact that the petition was not currently registered at the time of commencement. Petitioner cites Mago, LLC v. Singh, 57 A.D.3d 629, 871 N.Y.S.2d 186 (2008), arguing that petitioner's proof of compliance with the MDL subsequent to commencement cured any defects. However, the court in Mago ruled on the issue of retroactive rent, which is recoverable after a landlord's subsequent compliance. Id. at 630. The court in Mago cites to two cases for this rule, Chan v. Adossa, 195 Misc.2d 590, 760 N.Y.S.2d 609 (2003) and 9 Montague Terrace Assoc. v. Feuerer, 191 Misc.2d 18, 740 N.Y.S.2d 553 (2001). Chan is a summary holdover proceeding. As stated above in summary holdover proceedings, the lack of a currently multiple dwelling registration does not affect jurisdiction for a possessory judgment. Czerwinksi v. Hayes, supra. The violation of the MDL only affects a landlord's ability to collect rent. See Meaders v. Jones, 2003 N.Y. Slip Op. 51123(U); MSG Pomp Corp. v. Doe, 185 A.D.2d 798, 586 N.Y.S.2d 965 (1992); Jocar Realty Co. Rukavina, 130 Misc.2d 1009, 498 N.Y.S.2d 244 (1985). In 9 Montague Terrace Assoc, supra, the court considered the whether a landlord was permanently barred from recovering rent during a period of time when the subject premises was not registered pursuant to the MDL. The court found that the bar to recovery of rent was not permanent and that the landlord could commence a new summary proceeding without prejudice after compliance with the MDL.

In the instant case, petitioner's reliance on Mago is misplaced. Petitioner is not permanently barred from recovery of rent during the period in which the subject premises was not properly registered. Petitioner can commence a new summary proceeding.

Accordingly, respondent's motion is granted and the proceeding is dismissed without prejudice to the commencement of a new summary proceeding.

The foregoing constitutes the decision and order of the court.

Dated: November 9, 2016

Queens, New York