LANDLORD TENANT - USE & OCCUPANCY AND HOUSING VIOLATIONS

RPAPL Section 745(2)(a)(iv) enacted in the Housing Stability and Tenant Protection Act (“HSTPA”) provides “where a respondent has properly interposed a defense based upon the existence of hazardous or immediate hazardous violations of the housing maintenance code in the subject apartment or common areas, the court shall not order deposit or payment of use and occupancy.”

2167 Crotona Ave. HDFC v. Recio, NYLJ August 12, 2020, Date filed: 2020-07-27,     Court: Civil Court, Bronx, Judge: Judge Norma Jennings, Case Number: 001379/19:

"In this proceeding, respondent, in his answer raised the defense of warranty of habitability, and in his affidavit in opposition to the within motion for use and occupancy, alleges that there are outstanding hazardous conditions in the subject apartment. Respondent stated he commenced the HP action in February 2019 alleging several conditions which are still outstanding. Petitioner, however, alleges that the repairs were completed and on the last court appearance for the HP proceeding on December 12, 2019 the parties acknowledged that there was one outstanding violation for roach infestation. The parties arranged access for an exterminator on December 21, 2019, and if the extermination was not done, respondent never restored the proceeding to the court’s calendar to compel completion. The Court reviewed the HPD online website which indicates on June 11, 2020 HPD conducted an inspection of respondent’s apartment where the inspector found and recorded a class “C” violation for the infestation of roaches which was previously found by HPD on July 26, 2019 and is still outstanding. Therefore, pursuant to RPAPL 7452(a)(iv), the existence of this class “C” immediately hazardous condition, precludes the court from awarding petitioner use and occupancy, at this time.

Accordingly, petitioner’s motion for use and occupancy is denied without prejudice. The proceeding is adjourned to September 29, 2020 9:30a.m, Part K, room 350 to be referred to the expeditor for trial. Due to the ongoing Covid-19 pandemic, this date may be rescheduled by the court to a date when court operations have been fully restored. The parties will be notified of any date change."