Cutting off your nose to spite your face?
Based on what you've stated, you probably don't have to pay, but she also has the right to evict you. Look what you started.
I may be guessing or not licensed in your state. No atty/client relationship exists. I earn my living collecting points for "helpful" answers.
The landlord is within her rights to evict you.
If you found this "helpful" or "best answer," please click it with my appreciation. This response does not constitute legal advice and does not create an attorney client relationship. Thank you and good luck.
Assuming you are correct that your apartment is illegal, you can live rent free until you get evicted because a landlord cannot obtain back rent on an illegal apartment in an eviction case. The landlord can only recover possession.
I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.
She can evict you because you have not paid rent. However, if you mention your leased space is illegal, it is unlikely the Court will order you to pay any back rent. Beyond that, you should speak to an attorney to discuss your matter in order to determine the best course of action.
Dear Levittown Tenant:
There are two major impediments to the landlord's summary proceeding based on a default in paying rent after service of a three-day rent demand.
One is that the house lacks a residential certificate of occupancy for three apartments. The last legal status is single family, as you observed, so there is no C of O for the altered building. A New York landlord is disabled from successfully prosecuting a nonpayment proceeding where a C of O is required and the building is lacking the C of O. The defense based on the landlord lacking the statutory right to maintain the nonpayment proceeding is tricky, and the tenant should consider hiring an attorney may avoid real damage.
The second is based on the landlord's failure to register the three-dwelling unit house as a multiple dwelling. Even when the additional dwelling units are not legal, the owner still converted the building to a multiple dwelling and is barred from suing for rent based on the creation of an illegal and unregistered multiple dwelling. The defense to a nonpayment proceeding on grounds that the landlord is barred from maintaining the proceeding based on failing to register a multiple dwelling (See New York State Multiple Residence Law) is technical and requires the assistance of an attorney.
Judges often work their way around these technical issues, as ultimately, the landlord will be allowed to evict you for some reason, but perhaps not for defaulting in paying rent. A self-represented tenant runs the risk that the judge and the landlord's attorney would try to convince the tenant to accept a "conversion" of the case to a summary holdover proceeding, in which case, the unpaid rent is not an issue and all that the court is concerned with is the landlord's right to possession. Since all judges have a tendency to give back rented illegal dwellings to the landlord, without an attorney, even with the law on your side, the tenant runs the risk that everyone other than you wants to take a short-cut to justice and try to get you evicted in a case that should be dismissed.
Hire an attorney.
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.