Legal Opinion · Dissent
Phillips & Huyler Associates v. Flynn
Appellate Terms of the Supreme Court of New York
Decided April 11, 1995Published
1DissentKristin Booth Glen, J.
I respectfully dissent and vote to dismiss the nonpayment petition.
The record evidence establishes that the professional use was unauthorized under the existing certificate of occupancy, *349and that the applicable zoning resolution does not permit a professional use on the sixth floor of the multiple dwelling. A proceeding for nonpayment of rent may not be maintained if performance under a lease will necessarily entail a violation of the building codes, and the illegal condition is not capable of correction (Elkar Realty Corp. v Kamada, 6 AD2d 155; Thirty-Five Forty Thirtieth St. Corp. v Straub…
2Cases cited4 opinions
- Hart v. . City Theatres Co.New York Court of Appeals · 1915
- Elkar Realty Corp. v. KamadaAppellate Division of the Supreme Court of the State of New York · 1958
- Abright v. ShapiroAppellate Division of the Supreme Court of the State of New York · 1983
- Thirty-Five Forty Thirtieth Street Corp. v. Straub Furniture Delivery Co.Civil Court of the City of New York · 1963