There has been a recent round of decisions in which courts have barred the collection of rent from an entire building whenever a DOB violation is issued in respect to a single unit being used in contravention of a building’s certificate of occupancy (“CO”); even when such use is done without the knowledge and/or consent of the owner. This has, unfortunately, led to crushing results for landlords.
KMWB Partner Nativ Winiarsky has picked up the mantle and written his latest article to appear in today’s New York Law Journal, seeking to turn the judicial tide and impress upon the Judges deciding these issues that such decisions have been wrongly decided and that the caselaw needs to be understood in its proper context.
Nativ appeals to the reader that a proper understanding of the case law and public policy demonstrates that there can be no ruling relieving an entire building of its obligation pay rent where a violation of a CO is caused by a tenant without the knowledge and/or consent of an owner.
In a recent case handled by KMWB partner Robert Moore, he was able to receive a favorable evidentiary decision in a non-payment proceeding wherein the tenant interposed an MDL 301/302 defense of non-conforming use based on an unadjudicated DOB violation for an unrelated apartment, which the tenant’s counsel procured months after the petition was served and when the parties were already in the trial part.
The Court rejected this kind of gamesmanship and noted the reason the tenant failed to pay rent initially had nothing to do with non-conforming use in an unrelated apartment. The Court severed the petition from the date the unadjudicated violation was issued and precluded any evidence based on the purported non-conforming use for the same reason.
In effect, despite the purported non-conforming use violation, the Court allowed the non-payment case to proceed.