Nazor v. Sydney Sol Group, Ltd., 2025 NY Slip Op 03295 (2025)

Plaintiffs-tenants are correct that their payment of court-ordered use and occupancy pendente lite is not "voluntarily paid" rent for the purposes of Multiple Dwelling Law § 302(b) (see Trafalgar Co. v Malone, 73 Misc 3d 137[A], 2021 NY Slip Op 51116[U] [App Term 1st Dept 2021]). Defendant-landlord's collection of amounts for residential occupancy should not permit it to disclaim all obligations to render the premises minimally safe or refuse to provide the tenants with customary services provided to other tenants in the building (see e.g. Minjak Co. v Randolph, 140 AD2d 245, 250 [1st Dept 1988]; see also Rules of City of New York Loft Board [29 RCNY § 2-04(d)]). Therefore, the dismissal of the third and fourth causes of action for the return of those amounts, and the sixth cause of action for breach of the warranty of habitability should be without prejudice to the tenants' assertion of these claims in the related 2008 ejectment action, where the context of the use and occupancy orders can be properly construed and any abatements considered, as we previously determined should be the case (see Mushlam, Inc. v Nazor, 104 AD3d 483, 483 [1st Dept 2013]).