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Decided on June 23, 2004
Supreme Court, Kings County

20345/03
Francois A. Rivera, J.
Plaintiff moves by Order to Show Cause for an Order granting summary judgment and final judgment of possession. Plaintiff also seeks a writ of assistance to remove the defendant from her property, use and occupancy, and to strike defendant's answer. Defendant opposes plaintiff's motion.
Since February 3, 1989, plaintiff is the owner of a two family house located at 1222 East 83rd street, Brooklyn, New York. On July 1, 2000, plaintiff orally agreed to lease the first floor of her home to the defendant at a monthly rental of $600.00. On April 17, 2003, plaintiff served the defendant with a thirty day notice of termination. Plaintiff then commenced this ejectment action by service of a summons and verified complaint filed on June 3, 2003. The action is based on the defendant's alleged nonpayment of rent since January of 2003. Defendant, who appeared pro se, answered the Order to Show Cause and summons and verified complaint by appearing and denying plaintiff's claim of non-payment of rent.
Plaintiff admits in her pleadings that she cannot prosecute the action in the Civil Court of the City of New York because she lacks, and is unable to obtain, a multiple dwelling registration number. She also admits that the rental to the defendant was an illegal use of her two family home as a three family home contrary to its certificate of occupancy. Plaintiff contends in her pleadings that the premises were constructed after February 1, 1947 and are not subject to rent control or rent stabilization.
The court ordered a factual hearing on the issue of nonpayment of rent. The hearing was [*2]commenced on December 1, 2003 and rescheduled to January 12, 2004. On the prior date, it was apparent that plaintiff needed the services of a Hebrew interpreter. Although plaintiff's husband was able to testify without an interpreter, he had no personal knowledge on the issue of nonpayment of rent.
On January 12, 2004, at the rescheduled hearing, the parties stipulated that defendant voluntarily surrendered possession of the premises to the plaintiff and returned the key after the recess of the prior proceeding on December 1, 2003. Also undisputed is that defendant has not made rent payment since July of 2003. Defendant explained that he withheld rent payment since June 2003 because the plaintiff's decision to terminate his lease for nonpayment of rent was improper and he would need to save and accumulate funds to pay the expenses of obtaining a new place.
Based on the voluntary surrender of possession, the court dismissed the ejectment action and denied, as moot, all the requests for orders to obtain possession. The only issue remaining was plaintiff's claim of nonpayment of rent since January of 2003 and the request for use and occupancy covering this period.
At the conclusion of the factual hearing, the court finds that plaintiff has failed to establish defendant's nonpayment of rent from January of 2003 through June of 2003. Plaintiff's sole competent evidence was her testimony which was vague and contradictory. Defendant's testimony was clear, unequivocal and persuasive. The court finds that defendant made $600.00 monthly payments to the plaintiff by a combination of checks, cash and money orders.
Multiple Dwelling Law

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New York Law