S & M Enterprises v. Lee

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 28, 2000, which, inter alia, denied plaintiff landlord’s motion for summary judgment upon its claim for withheld rent and use and occupancy, unanimously affirmed, without costs. In view of factual issues as to whether plaintiff landlord 266 knowingly countenanced defendants’ residential occupancy in its building, and as to whether, during the period of defendants’ residential occupancy in plaintiffs building, the building was a “multiple dwelling,” within the meaning of Multiple Dwelling Law § 4 (7), for which no certificate of occupancy had been obtained, summary judgment upon plaintiffs claim for withheld rent and use and occupancy was properly denied (see, Multiple Dwelling Law § 301 [1]; § 302 [1] [a], [b]; 99 Commercial St. v Llewellyn, 240 AD2d 481, 483, lv denied, 90 NY2d 809). Concur — Rosenberger, J. P., Nardelli, Ellerin, Saxe and Friedman, JJ.