the cause of action or defense shall be established sufficiently to warrant the court as a
matter of law in directing a judgment in favor of any party." CPLR § 3212(b).
When a moving party makes a prima facie showing of entitlement to judgment as
a matter of law giving sufficient evidence to eliminate any material issue of fact,
summary judgment should be granted. Weingrad v New York University Medical
Center, 64 NY2d 851, 853 (1985). "Failure to make such a showing requires a denial
of the motion, regardless of the motion papers." Id at 853.
Courts have routinely held that where petitioner lacks a certificate of occupancy, the
petitioner is barred from collecting rent from the premises. The Court of Appeals is Chazon LLC v Maugenest, 19
NY3d 410 [2012] found that where a landlord was not in compliance with the loft
law requirements, the landlord was barred from collecting rent.. The court found in the
absence of compliance, the law's command is quite clear: "No rent shall be recovered by
the owner of such premises . . . and no action or special proceeding shall be maintained
therefor, or for possession of said premises for nonpayment of such rent." Those are the
words of Multiple Dwelling Law § 302(1) (b). The court went on the reason that if
the result of a complete bar to collecting rent is a harsh or undesirable result, the problem
is one to be addressed by the Legislature.
Prior to holding in Chazon, supra, , the lower courts found circumstances that
limited the general application of MDL § 302. Courts looked to whether the C/O
violation renders the tenant's residential occupancy unlawful, or whether arrears sought
are only for the illegal units and whether the tenant was not complicate in the existence