Case Type

Holdover-Illegal Use

Housing Type

SRO

Court

Civil Court of the City of New York

County

Queens County (Queens)

L&T / Index / Case / Docket / Clerk's Number

305185-21

Petitioner

SHRJANAND MAJARAJ

Respondent

FRED L. BOSTON

Judge

Bryan, David J.

Decision/Order Date

2023-08-27

Posture

Pre-answer Motion by Landlord

Disposition

Case Dismissed/discontinued

Winner

Tenant Substantially Won

Synopsis

In this illegal use holdover, the court granted the landlord's motion to vacate an ERAP stay and restore the case to the calendar on the grounds that the subject premises constituted a de facto multiple dwelling containing illegal units.  Because no legal obligation to pay rent existed for an illegal space, the statutory prerequisite for ERAP eligibility was unsatisfied. However, lifting the ERAP stay permitted the court to consider the tenant’s crossmotion to dismiss which was granted without prejudice. The court found that landlord's nearly two-year delay in seeking leave to file the affidavit of service nunc pro tunc (attributable to law office error) raised serious doubt as to whether tenant was ever properly served, and that even assuming valid service, the case was first calendared four months after alleged service, constituting a significant violation of RPAPL §733(1)'s 15-day notice requirement.  Failure to file affidavit of service is a contentious issue with a circuit split.

Keywords

Failure to file affidavit of service

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