
    Walter Carcione, Appellant, v Joe Rizzo, Respondent, et al., Defendant.
    Supreme Court, Appellate Term, Second Department,
    October 7, 1992
    
      APPEARANCES OF COUNSEL
    
      Walter Carcione, appellant pro se. Horing & Welikson, Forest Hills (Leonard R. Kaplain of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Order modified to the extent of denying defendant’s motion for summary judgment on condition that plaintiff serve and file a formal amended complaint within 30 days of the date of the order hereon, as so modified affirmed without costs.

The pro se indorsed pleadings dated May 30, 1991 state that plaintiff is suing in the amount of $24,750 for "Return of fees and rentals paid for illegal rental of apartment at 61-11 70 St., Middle Village, and expenses incurred”.

Both sides moved for summary judgment and the court granted defendant’s application and denied plaintiffs motion for summary judgment. It cited Multiple Dwelling Law § 325 (2) which states that where a resident of an unregistered dwelling (in this case an illegal three-family house) voluntarily pays rent when he had a right to withhold it under this section, he shall not thereafter have any claim to recover these payments.

In our view there are issues of fact requiring a plenary trial. The plaintiff has raised an issue regarding the breach of the warranty of habitability. The plaintiff, former tenant, may bring a plenary action to recover a sum of money for the percentage reduction of the contracted-for rent (Real Property Law § 235-b; Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329). An action for the breach of the warranty of habitability is not barred under Multiple Dwelling Law § 325 (2) which merely prevents a resident from recovering voluntary rent payments because the owner of the multiple dwelling failed to comply with the registration requirements of the Multiple Dwelling Law.

There also appears to be a cause of action for fraud and misrepresentation. The plaintiff served a summons and indorsed complaint in this action. The purpose of an indorsed complaint is merely to apprise defendant of the nature of the cause of action. Pursuant to CCA 902 (a) (1): "If the plaintiffs cause of action is for money only, the cause of action may be set forth by indorsement upon the summons. The indorsement shall consist of a statement of the nature and substance of the cause of action, and the summons in such instance shall set forth the amount in which the plaintiff will take judgment in the event of default. If the plaintiff shall appear without attorney, such indorsement shall be made by the clerk.”

Since this was an action for money only in the Civil Court the plaintiff’s cause of action may be set forth by indorsement upon the summons. It is noted, however, that since plaintiff is suing for $24,750 and is alleging an action for fraud and misrepresentation the circumstances should be stated in detail in a formal complaint (CCA 902 [e]; CPLR 3016 [b]).

Aronin, J.

(dissenting). The issue presented here is whether a tenant of an illegal apartment in a two-family house illegally occupied by three families has a right to sue for reimbursement of rents paid based on a claimed breach of warranty of habitability pursuant to Real Property Law § 235-b.

A landlord cannot maintain an action for rent against a tenant in a two-family house illegally occupied by three families in violation of section 325 (2) of the Multiple Dwelling Law (Corbin v Harris, 92 Misc 2d 480). Nor can a tenant who illegally occupies such a premises in violation of Multiple Dwelling Law § 325 (2) maintain an action for rent voluntarily paid. (Bridge Hardware Co. v Mayer, 131 NYS2d 823.)

The warranty of habitability (Real Property Law § 235-b) provides no basis to create a tenant’s right to maintain an action for rent paid in an illegal three-family dwelling. Rather, the warranty of habitability contemplates a legal lease (see, Baxter v Captain Crow Mgt., 128 Misc 2d 254, 262).

The majority’s reliance on Park W. Mgt. Corp. v Mitchell (47 NY2d 316) does not support a cause of action for reimbursement of rent in an illegal landlord-tenant relationship. The Court of Appeals in Park W. (supra), merely recognized the right of a former tenant to recover money for a percentage reduction of the contract for rent in a legal landlord-tenant relationship based on Real Property Law § 235-b. In so doing, it recognized that a lease is more akin to the purchase of shelter, rather than a conveyance of land, and that, therefore, the law of sales with its implied warranty of fitness (UCC 2-314) "provides a ready analogy” (supra, at 324) that is better suited than the outdated law of property to determine the respective obligations of landlord and tenant. Following this logic, there is no implied warranty of fitness recognized in the UCC for a "hot” product; or an illegal sale; nor should there be, by "ready analogy” a cause of action based on an implied warranty of habitability for an illegal apartment. Plainly, there is simply no basis in law to recognize a cause of action for rent paid in an unlawful landlord-tenant relationship.

There is no basis in equity or sound public policy to recognize a tenant’s right to recover rent voluntarily paid based on an illegal landlord-tenant relationship. A court of equity will refuse affirmative aid to a litigant who comes into court with unclean hands such as where the litigant seeks affirmative relief based on an illegal contract or other illegal conduct. The denial of affirmative relief under such circumstances is a matter of public policy to protect the integrity of the courts, as well as a disability to the litigant with unclean hands (Tepfer v Berger, 119 AD2d 668, 669; Pecorella v Greater Buffalo Press, 107 AD2d 1064, 1065; Haskins v Thomajan, 99 AD2d 463, 464; Simmons v Benn, 96 AD2d 507, 508; Farino v Farino, 88 AD2d 902, 903).

Monteleone, J. P., and Scholnick, J., concur; Aronin, J., dissents in a separate memorandum opinion.  