On March 22, 2020 a
Exhibit,Appendix
was filed
involving a dispute between
Opera House Lofts Llc,
and
Ahmed Almahdi,
Alexander Azzure,
Alexandra Harrington,
Alex Regan,
Alex Regan
Aka Alex Regen,
Alicia French,
Amber Renaye
A K A Amber Thomas,
Amber Thomas,
Anastasia Vlasova,
Andres Rincon,
Andrew Fassel,
Andrew Wehnke,
Anthony Christie,
Ari Finkel,
Aurora Halal,
Bethany Reeves,
Beth Morgan,
Brandon Smith,
Brooke Davies,
Bryant Wells,
Carly Forgach,
Caroline Silverman,
Casey Halter,
Cassandra Fernandes,
Casssandra Emmett,
Celina Vicioso,
Chelsea Spencer,
Christopher Carnahan,
Christoph Krey,
Dana Cataldo,
Daniel Mcinerney,
David Call,
David Richter,
Diana Osorio,
Edras Maldonado,
Elanor Barnes,
Emily Zech,
Evan Batson,
Evander Batson,
Gavin Koepke,
Gerrard Deasy,
Gia Kourlas,
Giancarlo Roca,
Grant Gulla,
Guho Kevin Kim,
Hector Guerra,
Hector Macel
Aka Hector Malacaria,
Hector Malacaria,
Hellen Smith,
Henry Gordon-Smith,
Howida Tarabzooni,
Jack Ford,
Jaka Vinsek,
Jason Halal,
Jeffrey Arthur,
Jenzo Duque,
Jeremy Hawkins,
Jessica Muller,
Jessica Muller
Aka Jessica Miller,
Joanna Whicker,
Johannes Staudt,
Joon Lee,
Jordan Smith,
Jordan Sutherland,
Joseph Lewis,
Joseph Simons,
Joseph Tyman,
Josh Reames,
Julie Covello,
Katrina Wilson,
Kelsey Fairhurst,
Kendall Payne,
Kevin Kim,
Kevin Urvalek,
Laura Newman,
Laurence Beilenson,
Luisel Pena,
Madalyn Drew,
Madeline Arnoldy,
Marcella Lentz-Pope,
Margarita Cardenas,
Martin Argueta,
Michael Chesbro,
Michael Ralston,
Michael Sauder,
Mie Vedel Joergensen,
Molly Wypyski,
Mutaurwa Mapondera,
Nicholas Cortezi,
Noah Goldberg,
Pablo Smith,
Paula Smith,
Peter Carlovich,
Piya Malik,
Quinn Mcgovern,
Radhika Basu,
Richard Einhorn,
Richard Maguire,
Rocco Mancinelli,
Roque Silva,
Ryan Schweitzer,
Ryan Shollenberger,
Samantha Cunningham,
Samantha Giovinco,
Sarah Beilenson,
Sarah Labriola,
Sarah Witham,
Sebastian Medeiros,
Sebastian Rodas Medeiros,
Seth Lopez,
Shannon Lumpkin,
Slyvie Wise,
Sonja Einem,
Stephanie Deangelis,
Stephen Meyers,
Subantita Suwan,
Tatiana Reid,
The New York City Department Of Buildings,
Thomas Parker,
Tony Christie,
Tristan Hughes-Freeland,
Tyler Harris,
Willaim Klimbert,
Winston Adeyemo,
Yohay Ben-Itzhak,
Zachary Pless,
for Real Property - Other (Declaratory Judgment)
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 12/07/2020
09/29/2021 08:11
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NYSCEF DOC. NO. 13
145 RECEIVED NYSCEF: 12/07/2020
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
OPERA HOUSE LOFTS LLC, : Index No.: 507079/20
:
Plaintiff, :
- against - : NOTICE OF APPEARANCE
: & ANSWER
CHRISTOPHER CARNAHAN, ET AL., :
:
Defendants. :
X
C O U N S E L:
PLEASE TAKE NOTICE that WEEN & KOZEK, PLLC, hereby appears on
behalf of Defendants JULIE COVELLO (Unit 103), RYAN SHOLLENBERGER (Unit 105),
CELINA VICIOSO (Unit 107), MIKE CHESBRO (Unit 108) P1YA MALIK (Unit 111), LAURA
NEWMAN (Unit 113), DIANA OSORIO (Unit 114), KELSEY FAIRHURST and BRYANT
WELLS (Unit 115), SHANNON LUMPKIN (Unit 116), JESSICA MÜLLER, ALFONSO
ORDOSGOITIA and TATSUNORI HONSOI (Unit 206) SARA LABRIOLA and GAVIN
KOEPKE (Unit 209), JEWEL PAULA SMITH, JORDAN SMITH and SHARAHYA CARTER
(Unit 210), HECTOR MARCEL a/k/a HECTOR MALACARIA (Unit 211), RICHIE EINHORN,
ARI FINKEL, MICHAEL RALSTON and DANIEL MC1NERERY (Unit 212), MOLY WYPYSKI
and RYAN SCHWEIZTER (Unit 213), SYLVIE WISE (Unit 214), KENDALL PAYNE (Unit 301),
MUTAURWA MAPONDERA (Unit 302), CASSANDRA L. EMMETT (Unit 306), ALEXREGEN
(Unit 309), BETHANY REEVES (Unt 315), JAKA VINSEK (Unit 401), WILLIAM KLIMPERT
and CAROLINE SILVERMAN (Unit 402), BETH MORGAN and DAVID RICHTER (Unit 403),
DAVID CALL (Unit 405), RICHIE MAGUIRE (Unit 406), DANA CATALDO (Unit 410),
CHELSEA SPENCER and JOHANNES STAUDT (Unit 413), JOSH REAMES and AMBER
RENAYE (Unit 414), and ZAC PLESS (Unit 415) (coHecdvely, "Defendants"), in this action and
demands that allpapers be served upon us at the address listed below.
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PLEASE TAKE FURTHER NOTICE that Defendants hereby answer the
Amended Complaint, dated October 23, 2020 (the "Complaint"), brought by plaintiff OPERA
HOUSE LOFTS LLC ("Plaintiff"), upon information and belief, as follows.
1. Defendants deny lolowledge and/or information sufficient to form a belief as to the
allegations in paragraphs 1, 2, 3,4, 5, 6, 7, 8,9, 10, 11, 12, 14, 15, 16 and 17 of the Comp½t.
2. Defendants deny the allegations in paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 32
and 33 of the Complaint.
3. As to paragraph 13 of the Comp½t, Defendants deny information and belief
sufficient to form a belief as to the allegations therein, except Defendants admit that Lot 48 (asdefined
in the Complaint) is,to date, vacant and undeveloped.
4. As to paragraphs 18 and 30 of the Complaint, Defendants repeat and reallege the
responses in the paragraphs above as though fully set forth herein.
5. As to paragraph 19 of the Complaint, Defendants deny the allegations therein, except
Defendant admit that the Building (as defined in the Complaint) lack a proper Certificate of
Occupancy pursuant to Multiple Dwelling Law § 301.
6. As to paragraph 29 of the Complaint, Defendants respectfully refer allconclusions of
law to this Court for adjudication and otherwise deny the allegations therein.
AS AND FOR A FIRST OBJECTION IN POINT OF LAW
7. The Cóniplaint fails to state a cause of action upon which reliefmay be grañted.
8. Accordingly, thisaction must be dismissed in its entirety.
AS AND FOR A SE COND OBJECTION IN POINT OF LAW
9. Plaintiff seeks a determination as to the validity of a certificate of occupancy initially
issued by the New York City Department of Buildings (the "DOB") on or about February 22, 2005.
10. This action is barred, in whole or in part, by the applicable statute of limitations.
2
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11. Accordingly, thisaction must be dismissed in its entirety.
AS AND FOR A THIRD OBJECTION IN POINT OF LAW
12. This Courtlacks jurisdiction over the person of Defendâüi.s because the summons and
complaintin this action was not servedin accordance with the NewYork Civil Practice Law and Rules
("CPLR").
13. Accordingly, thisaction must be dismissed in its entirety.
AS AND FOR A FOUTH OBJECTION IN POINT OF LAW
14. There is a prior pending proceeding before the New York City Loft Board (the "Loft
Board") that will be dispositive of the issues present herein.
15. The Loft Board has primary jurisdiction over matters concerning Article 7-C of the
Law."
Multiple Dwelling Law ("MDL") §§ 280 et seq.,
also known as the "Loft
16. this action must be . ed in its or stayed the
Accordingly, entirety pending
outcome of the prior pending Loft Board proceeding.
AS AND FOR A FIFTH OBJECTION IN POINT OF LAW
17. The NewYork City Board of Standards and Appeals has primary jurisdiction to review
the issuance and/or validity of cerdEcates and occupancy.
18. Accordingly, this action must be dismissed in its entirety or stayed pending a
determination from the New York City Board of Standards and Appeals.
AS AND FOR A SIXTH OBJECTION IN POINT OF LAW
19. This Court lacks subject matter jurisdiction over the allegations in the Complaint.
20. Accordingly, thisaction must be dismissed in its entirety.
AS AND FOR A SEVENTH OBJECTION IN POINT OF LAW
21. Plaintiff failed to timely serve the mmmans and complaint in this action.
22. Plaintiff filed the summons and complaint in this action on March 22, 2020.
3
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23. Plaintiff did not serve the summons and complaint in this action until October 26-29,
2020.
24. As such, Plaintiff failed to timely serve the summons and complaint pursuant to CPLR
§ 306-b.
25. Accordingly, thisaction must be disniissed in its entirety.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
26. This action concerns the building known as and located at 11-27 Arion Place,
Brooklyn, New York, Tax Block/Lot: 3136/40 (the "Building").
27. The Building is owned by Arion Enterprises, LLC (the "Owner").
28. On or about January 20, 1953, the DOB issued a certificate of occupancy certifying
the Building for commercial use.
29. On or about February 22, 2005, the DOB issued a certificate of occupancy certifying
a nonexistent building located on a lot adjacent to the Building (Tax Block/Lot: 3136/48) (the
"apartments/hotels"
"Adjacent for use as (a nonevierent classification).
Lot")
30. Notably, Tax Block/Lot: 3136/48 remains undeveloped.
work"
31. Upon information and belief, on or about April 2, 2020, the Owner filed a "no
Alteration Type 1 application with the DOB see'ng to transfer the certificate of occupancy issued for
the Adjacent Lot to the Building.
32. Upon further information and belief, on or about September 21, 2020, the DOB
work"
erroneously approved the Owner's "no Alteration Type 1 application and transferred the
certificate of occupancy issued for the Adjacent Lot to the Building.
33. On July 19, 2020, Arthur Atlas, R.A., inspected the Building and found, interalia, as
follows:
• Although the certificate of states that the is thirty-eight feet
occupancy Building (38)
4
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in height, upon an independent survey, the Bading was found to be fifty-four (54')
feet, nine (9") inches in height.
• Although the certificate of states that the conforms to the 1968
occupancy Building
Building Code designation for construction clocciGcation 2-B, the Building contains
numerous instances of tin ceilings, exposed wood joists,exposed wood girders and
unprotected cast iron columns.
• The second, three located on Lot 40 and attached to the
(3) story building Building
isa wood-frame building that fails to conform to the 1968 Building Code designation
for construction classification 2-B.
• The certificate of certifies the for use of sixty-six units
occupancy Building (66)
"apartments/hotels."
classified as This occupancy classification does not exist.
• The Building's second means of egress is an exterior staircase over four stories
(4)
in height that is exposed to the elenients and fails to comply with applicable
regulations.
• The mezzanines installed at the lack edeqüste headroom and legal access
Building
and egress.
• The sprinklers installed in the Building's public halls do not provide adequate
coverage for residential multiple d-wellings.
• The Building's public halls and internal staircase lack required firestopping.
• The doors to units in the are neither fire-rated nor self-
entry dwelling Building
closing.
• The doors to units in the lack deadbolt locks and
entry dwelling Building
chainguards.
• The units in the do not contain carbon monoxide detectors.
dwelling Building
• Some units in the contain illegalgas space heaters.
dwelling Building
• Some units in the lack GFI outlets in the Etchen and/or
dwel¹ing Building
bathroom.
34. Based on the foregoing, it is respectfully submitted that the DOB erroneously
transferred the certificate of occupancy from the Adjacent Lot to the Building without any actual
inspection of the Building.
5
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35. Accordingly, thisaction should be dismissed in itsentirety.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
36. The allegations in the paragraphs above are hereby repeated and re-alleged as if fully
stated herein.
37. Plaintiff is barred from collecting rent and/or use and occupancy itseeks pursuant to
statute.
38. The Building is residentially cocepied without a proper certificate of occupancy as
required by MDL § 301 (1).
39. Accordingly, Petitioner is barred by MDL § 302 (1) from collecting the rent and/or
use and occupancy sought in this proceeding.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
40. The allegations in the paragraphs above are hereby repeated and re-alleged as if fully
stated herein.
41. Plaintiff failed to exhaust the available adminicerative remedies before commencing
this action.
42. Accordingly, thisaction should be dismissed in itsentirety.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
43. The allegations in the paragraphs above are hereby repeated and re-alleged as if fully
stated herein.
44. Notwithstmding that the DOB improperly issued the certificate of occupancy for the
Building, and aGGu:ning,.=g=ds, that the certificate of occupancy is valid, Plaintiffis only endded to
collect rent and/or use and eccupancy commencing September 21, 2020 (i.e.,the date the DOB
improperly issued the certificate of occupancy for the Building).
6
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45. Accordingly, pursuant to MDL § 302 (1),Plaintiffis barred from collecting rent and/or
use and eccupancy purportedly accrued prior to September 21, 2020.
Dated: Brooklyn, New York
December 7, 2020
Yours, etc.,
WEEN & KOZEK, LLC
Attorngs for Defendants
20 Jay Street, Suite 822
Brooklyn, New York 11201
964 - 1822
(212)
By·
Andrew D. Cassady
acassady@weenkozek.com
To: Kucker Marino Winairsky & Bittens (via NYSCEF)
Attorngs for Plaintg
747 Third Avenue, 12th Floor
New York, New York 10017
(212) 869-50300
7
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Preview
FILED: KINGS COUNTY CLERK 12/07/2020 09/29/2021 08:11 05:39 PM INDEX NO. 507079/2020 NYSCEF DOC. NO. 13 145 RECEIVED NYSCEF: 12/07/2020 09/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X OPERA HOUSE LOFTS LLC, : Index No.: 507079/20 : Plaintiff, : - against - : NOTICE OF APPEARANCE : & ANSWER CHRISTOPHER CARNAHAN, ET AL., : : Defendants. : X C O U N S E L: PLEASE TAKE NOTICE that WEEN & KOZEK, PLLC, hereby appears on behalf of Defendants JULIE COVELLO (Unit 103), RYAN SHOLLENBERGER (Unit 105), CELINA VICIOSO (Unit 107), MIKE CHESBRO (Unit 108) P1YA MALIK (Unit 111), LAURA NEWMAN (Unit 113), DIANA OSORIO (Unit 114), KELSEY FAIRHURST and BRYANT WELLS (Unit 115), SHANNON LUMPKIN (Unit 116), JESSICA MÜLLER, ALFONSO ORDOSGOITIA and TATSUNORI HONSOI (Unit 206) SARA LABRIOLA and GAVIN KOEPKE (Unit 209), JEWEL PAULA SMITH, JORDAN SMITH and SHARAHYA CARTER (Unit 210), HECTOR MARCEL a/k/a HECTOR MALACARIA (Unit 211), RICHIE EINHORN, ARI FINKEL, MICHAEL RALSTON and DANIEL MC1NERERY (Unit 212), MOLY WYPYSKI and RYAN SCHWEIZTER (Unit 213), SYLVIE WISE (Unit 214), KENDALL PAYNE (Unit 301), MUTAURWA MAPONDERA (Unit 302), CASSANDRA L. EMMETT (Unit 306), ALEXREGEN (Unit 309), BETHANY REEVES (Unt 315), JAKA VINSEK (Unit 401), WILLIAM KLIMPERT and CAROLINE SILVERMAN (Unit 402), BETH MORGAN and DAVID RICHTER (Unit 403), DAVID CALL (Unit 405), RICHIE MAGUIRE (Unit 406), DANA CATALDO (Unit 410), CHELSEA SPENCER and JOHANNES STAUDT (Unit 413), JOSH REAMES and AMBER RENAYE (Unit 414), and ZAC PLESS (Unit 415) (coHecdvely, "Defendants"), in this action and demands that allpapers be served upon us at the address listed below. 1 of 7 FILED: KINGS COUNTY CLERK 12/07/2020 09/29/2021 08:11 05:39 PM INDEX NO. 507079/2020 NYSCEF DOC. NO. 13 145 RECEIVED NYSCEF: 12/07/2020 09/29/2021 PLEASE TAKE FURTHER NOTICE that Defendants hereby answer the Amended Complaint, dated October 23, 2020 (the "Complaint"), brought by plaintiff OPERA HOUSE LOFTS LLC ("Plaintiff"), upon information and belief, as follows. 1. Defendants deny lolowledge and/or information sufficient to form a belief as to the allegations in paragraphs 1, 2, 3,4, 5, 6, 7, 8,9, 10, 11, 12, 14, 15, 16 and 17 of the Comp½t. 2. Defendants deny the allegations in paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 32 and 33 of the Complaint. 3. As to paragraph 13 of the Comp½t, Defendants deny information and belief sufficient to form a belief as to the allegations therein, except Defendants admit that Lot 48 (asdefined in the Complaint) is,to date, vacant and undeveloped. 4. As to paragraphs 18 and 30 of the Complaint, Defendants repeat and reallege the responses in the paragraphs above as though fully set forth herein. 5. As to paragraph 19 of the Complaint, Defendants deny the allegations therein, except Defendant admit that the Building (as defined in the Complaint) lack a proper Certificate of Occupancy pursuant to Multiple Dwelling Law § 301. 6. As to paragraph 29 of the Complaint, Defendants respectfully refer allconclusions of law to this Court for adjudication and otherwise deny the allegations therein. AS AND FOR A FIRST OBJECTION IN POINT OF LAW 7. The Cóniplaint fails to state a cause of action upon which reliefmay be grañted. 8. Accordingly, thisaction must be dismissed in its entirety. AS AND FOR A SE COND OBJECTION IN POINT OF LAW 9. Plaintiff seeks a determination as to the validity of a certificate of occupancy initially issued by the New York City Department of Buildings (the "DOB") on or about February 22, 2005. 10. This action is barred, in whole or in part, by the applicable statute of limitations. 2 2 of 7 FILED: KINGS COUNTY CLERK 12/07/2020 09/29/2021 08:11 05:39 PM INDEX NO. 507079/2020 NYSCEF DOC. NO. 13 145 RECEIVED NYSCEF: 12/07/2020 09/29/2021 11. Accordingly, thisaction must be dismissed in its entirety. AS AND FOR A THIRD OBJECTION IN POINT OF LAW 12. This Courtlacks jurisdiction over the person of Defendâüi.s because the summons and complaintin this action was not servedin accordance with the NewYork Civil Practice Law and Rules ("CPLR"). 13. Accordingly, thisaction must be dismissed in its entirety. AS AND FOR A FOUTH OBJECTION IN POINT OF LAW 14. There is a prior pending proceeding before the New York City Loft Board (the "Loft Board") that will be dispositive of the issues present herein. 15. The Loft Board has primary jurisdiction over matters concerning Article 7-C of the Law." Multiple Dwelling Law ("MDL") §§ 280 et seq., also known as the "Loft 16. this action must be . ed in its or stayed the Accordingly, entirety pending outcome of the prior pending Loft Board proceeding. AS AND FOR A FIFTH OBJECTION IN POINT OF LAW 17. The NewYork City Board of Standards and Appeals has primary jurisdiction to review the issuance and/or validity of cerdEcates and occupancy. 18. Accordingly, this action must be dismissed in its entirety or stayed pending a determination from the New York City Board of Standards and Appeals. AS AND FOR A SIXTH OBJECTION IN POINT OF LAW 19. This Court lacks subject matter jurisdiction over the allegations in the Complaint. 20. Accordingly, thisaction must be dismissed in its entirety. AS AND FOR A SEVENTH OBJECTION IN POINT OF LAW 21. Plaintiff failed to timely serve the mmmans and complaint in this action. 22. Plaintiff filed the summons and complaint in this action on March 22, 2020. 3 3 of 7 FILED: KINGS COUNTY CLERK 12/07/2020 09/29/2021 08:11 05:39 PM INDEX NO. 507079/2020 NYSCEF DOC. NO. 13 145 RECEIVED NYSCEF: 12/07/2020 09/29/2021 23. Plaintiff did not serve the summons and complaint in this action until October 26-29, 2020. 24. As such, Plaintiff failed to timely serve the summons and complaint pursuant to CPLR § 306-b. 25. Accordingly, thisaction must be disniissed in its entirety. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 26. This action concerns the building known as and located at 11-27 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/40 (the "Building"). 27. The Building is owned by Arion Enterprises, LLC (the "Owner"). 28. On or about January 20, 1953, the DOB issued a certificate of occupancy certifying the Building for commercial use. 29. On or about February 22, 2005, the DOB issued a certificate of occupancy certifying a nonexistent building located on a lot adjacent to the Building (Tax Block/Lot: 3136/48) (the "apartments/hotels" "Adjacent for use as (a nonevierent classification). Lot") 30. Notably, Tax Block/Lot: 3136/48 remains undeveloped. work" 31. Upon information and belief, on or about April 2, 2020, the Owner filed a "no Alteration Type 1 application with the DOB see'ng to transfer the certificate of occupancy issued for the Adjacent Lot to the Building. 32. Upon further information and belief, on or about September 21, 2020, the DOB work" erroneously approved the Owner's "no Alteration Type 1 application and transferred the certificate of occupancy issued for the Adjacent Lot to the Building. 33. On July 19, 2020, Arthur Atlas, R.A., inspected the Building and found, interalia, as follows: • Although the certificate of states that the is thirty-eight feet occupancy Building (38) 4 4 of 7 FILED: KINGS COUNTY CLERK 12/07/2020 09/29/2021 08:11 05:39 PM INDEX NO. 507079/2020 NYSCEF DOC. NO. 13 145 RECEIVED NYSCEF: 12/07/2020 09/29/2021 in height, upon an independent survey, the Bading was found to be fifty-four (54') feet, nine (9") inches in height. • Although the certificate of states that the conforms to the 1968 occupancy Building Building Code designation for construction clocciGcation 2-B, the Building contains numerous instances of tin ceilings, exposed wood joists,exposed wood girders and unprotected cast iron columns. • The second, three located on Lot 40 and attached to the (3) story building Building isa wood-frame building that fails to conform to the 1968 Building Code designation for construction classification 2-B. • The certificate of certifies the for use of sixty-six units occupancy Building (66) "apartments/hotels." classified as This occupancy classification does not exist. • The Building's second means of egress is an exterior staircase over four stories (4) in height that is exposed to the elenients and fails to comply with applicable regulations. • The mezzanines installed at the lack edeqüste headroom and legal access Building and egress. • The sprinklers installed in the Building's public halls do not provide adequate coverage for residential multiple d-wellings. • The Building's public halls and internal staircase lack required firestopping. • The doors to units in the are neither fire-rated nor self- entry dwelling Building closing. • The doors to units in the lack deadbolt locks and entry dwelling Building chainguards. • The units in the do not contain carbon monoxide detectors. dwelling Building • Some units in the contain illegalgas space heaters. dwelling Building • Some units in the lack GFI outlets in the Etchen and/or dwel¹ing Building bathroom. 34. Based on the foregoing, it is respectfully submitted that the DOB erroneously transferred the certificate of occupancy from the Adjacent Lot to the Building without any actual inspection of the Building. 5 5 of 7 FILED: KINGS COUNTY CLERK 12/07/2020 09/29/2021 08:11 05:39 PM INDEX NO. 507079/2020 NYSCEF DOC. NO. 13 145 RECEIVED NYSCEF: 12/07/2020 09/29/2021 35. Accordingly, thisaction should be dismissed in itsentirety. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 36. The allegations in the paragraphs above are hereby repeated and re-alleged as if fully stated herein. 37. Plaintiff is barred from collecting rent and/or use and occupancy itseeks pursuant to statute. 38. The Building is residentially cocepied without a proper certificate of occupancy as required by MDL § 301 (1). 39. Accordingly, Petitioner is barred by MDL § 302 (1) from collecting the rent and/or use and occupancy sought in this proceeding. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 40. The allegations in the paragraphs above are hereby repeated and re-alleged as if fully stated herein. 41. Plaintiff failed to exhaust the available adminicerative remedies before commencing this action. 42. Accordingly, thisaction should be dismissed in itsentirety. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 43. The allegations in the paragraphs above are hereby repeated and re-alleged as if fully stated herein. 44. Notwithstmding that the DOB improperly issued the certificate of occupancy for the Building, and aGGu:ning,.=g=ds, that the certificate of occupancy is valid, Plaintiffis only endded to collect rent and/or use and eccupancy commencing September 21, 2020 (i.e.,the date the DOB improperly issued the certificate of occupancy for the Building). 6 6 of 7 FILED: KINGS COUNTY CLERK 12/07/2020 09/29/2021 08:11 05:39 PM INDEX NO. 507079/2020 NYSCEF DOC. NO. 13 145 RECEIVED NYSCEF: 12/07/2020 09/29/2021 45. Accordingly, pursuant to MDL § 302 (1),Plaintiffis barred from collecting rent and/or use and eccupancy purportedly accrued prior to September 21, 2020. Dated: Brooklyn, New York December 7, 2020 Yours, etc., WEEN & KOZEK, LLC Attorngs for Defendants 20 Jay Street, Suite 822 Brooklyn, New York 11201 964 - 1822 (212) By· Andrew D. Cassady acassady@weenkozek.com To: Kucker Marino Winairsky & Bittens (via NYSCEF) Attorngs for Plaintg 747 Third Avenue, 12th Floor New York, New York 10017 (212) 869-50300 7 7 of 7