In Misir v. Gilbert , Jerry Misir filed suit to recover rent from his tenant, Mae Ann Gilbert, for the period May 2005 through August 2006.
While the monthly rent rate was only about $800, Gilbert wouldn't pay because the building was allegedly being used as "an illegal multiple dwelling and that [Misir] breached the warranty of habitability."
In addition to evidence a prior case had been dismissed due to the building's status as an "illegal multiple dwelling," Gilbert produced copies of "two notices of violation" from the City which reflected the basement's illegal conversion to a third apartment.
Misir countered with "certificates of correction" from the New York City Department of Buildings indicating, as of December 10, 2005, the basement unit was no longer "illegal." As a result, the Queens County Civil Court awarded Misir all the rent sued for, less a 10% decrease due to apartment related conditions.
On appeal, the Appellate Term, Second Department, concluded the Civil Court "erred in allowing retroactive recovery of rent."
The AT2 was of the opinion Misir forfeited his ability to collect the money while the building was illegally configured and adjusted the judgment from $11,520 to $6,247.74 -- which encompassed 21 days in December and the reduced (post-abatement) rent for January through August, 2006.
Good luck getting the Appellate Division to correct that.
To download a copy of the Appellate Term's decision, please use this link: Misir v. Gilbert