Tenant's claim that no rent is due based upon landlord's alleged failure to obtain a valid permit from the Town of Islip to rent the subject premises lacks merit. "The fact that an apartment is rented without a permit does not preclude the recovery of rent, absent a statutory bar to such recovery" (Hayes v Ramsey, 60 Misc 3d 137[A], 2018 NY Slip Op 51114[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; see Madden v Juillet, 46 Misc 3d 146[A], 2015 NY Slip Op 50214[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Sinclair v Ramnarace, 36 Misc 3d 150[A], 2012 NY Slip Op 51671[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; Corbin v Briley, 192 Misc 2d 503, 504 [App Term, 2d Dept, 9th & 10th Jud Dists 2002]). Even where there is a statutory proscription against the recovery of rent by a landlord (see e.g. Multiple Dwelling Law § 325 [2]), rent that was voluntarily paid is not recoverable by a tenant, despite the premises' illegal status (see Hayes, 60 Misc 3d 137[A], 2012 NY Slip Op 51671[U]; Candela v Fried, 3 Misc 3d 136[A], 2004 NY Slip Op 50508[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004] [rents voluntarily paid for period of noncompliance cannot be recovered]; see also Ovalles v Mayer Garage Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51261[U], *1 [App Term, 1st Dept 2005] [a tenant cannot "recoup rents already paid"]).

Accordingly, the final judgment is reversed and the matter is remitted to the District Court for a new trial.

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 28, 2019