ILLEGAL APARTMENTS IN NON-MULTIPLE DWELLINGS

In this case, the Multiple Dwelling Law did not apply yet the apartment lacked a certificate of occupancy. Madden v. Juillet, 2015 NY Slip Op 50214 - NY: Appellate Term, 2nd Dept. 2015:

"In this small claims action, Margaret A. Madden (plaintiff) appeals, on the ground of inadequacy, from a judgment of the District Court, which, after a nonjury trial, awarded her the principal sum of $875 against defendant, the former tenant of the lower level of plaintiff's house, but failed to award plaintiff $1,200 that she had sought for the attorney's fees she had allegedly incurred in bringing a prior nonpayment proceeding against defendant. Defendant cross-appeals from the judgment, arguing that she does not owe the $800 which was awarded to plaintiff for April 2012 rent because the premises was an illegal basement apartment and because plaintiff breached the warranty of habitability.

In our view, the District Court properly declined to award plaintiff the attorney's fees she sought, as plaintiff failed to prove that she had paid the fees. In any event, in view of the mixed outcome of the prior nonpayment proceeding—plaintiff had sued defendant for $2,400 and had been awarded only $800—it cannot be said that plaintiff was the prevailing party in that proceeding (see e.g. Mosesson v 288/98 W. End Terrace Corp., 294 AD2d 283 [2002]).

Contrary to defendant's contention, the absence of a certificate of occupancy for the lower-level apartment does not bar the recovery of rent (see Sinclair v Ramnarace, 36 Misc 3d 150[A], 2012 NY Slip Op 51671[U] [App Term, 9th & 10th Jud Dists 2012]; Pickering v Chappe, 29 Misc 3d 6 [App Term, 2d, 11th & 13th Jud Dists 2010]; Schweighofer v Straub, 23 Misc 3d 132[A], 2009 NY Slip Op 50730[U] [App Term, 9th & 10th Jud Dists 2009]; Corbin v Briley, 192 Misc 2d 503 [App Term, 9th & 10th Jud Dists 2002]; Tuzel v Reilert, NYLJ, Dec. 3, 1996 [App Term, 9th & 10th Jud Dists])."

NOTE: This was an appeal from a plenary action and not a special proceeding landlord/tenant action.