Karan Realty Assocs. LLC v. Perez

75 Misc.3d 499

166 N.Y.S.3d 492

KARAN REALTY ASSOCIATES LLC, Petitioner-Landlord,

v.Nelson PEREZ, Respondent-Occupant, Cristina Perez John Doe & Jane Doe, Respondent-Undertenants.

Index No. L & T 306418/21

Civil Court, City of New York, Queens County.

Decided on March 25, 2022

For Petitioner: Gregory Bougopoulos, Esq., Novick Edelstein Pomerantz, P.C.

For Respondent: Jessie Phillips Levine, Esq. Queens Legal Services

Jeannine Baer Kuzniewski, J.

The Decision/Order on the petitioner's motion to vacate the stay that is in effect due to the filing of a Hardship Declaration and ERAP application in this holdover proceeding is as follows:

This holdover proceeding was commenced seeking possession of the premises at 109-10 Park Lane South, apartment A6, Richmond Hill, NY 11418. The petition states that Nelson Perez is in occupancy of the apartment as an incidence of his employment as superintendent of the building. His employment was terminated on September 1, 2021 and the petition was filed on September 28, 2021. On October 6, 2021 the petitioner filed an amended petition which also alleged:

"Respondent's persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others, including your landlord and other tenant(s)."

Essentially the petitioner is alleging that the respondent is infringing on the use and enjoyment of the landlord and other tenants by remaining in the apartment and thereby not allowing the new superintendent to move in and be on property to address the needs of the tenants in the building. On October 3, 2021 Nelson Perez completed a Hardship Declaration. On December 10, 2021 the petitioner filed this Order to Show Cause. On January 27, 2022 the respondent applied for ERAP. On February 1, 2022 the respondent submitted opposition to the Order to Show Cause and on February 7, 2020 the petitioner filed their reply.

The Order to Show Cause seeks an order invalidating the Hardship Declaration filed by Mr. Perez. The Court will deny this as moot as this protection expired on January 15, 2022.

The application further asks that the proceeding be allowed to continue arguing that:

"... due to Respondents continued occupancy demonstrating persistent and unreasonably ongoing in behavior which is substantially interfering with the use and enjoyment of other tenants or occupants, or which causes a substantial hazard to others,

-invalidating any stay of the proceeding date to Perez's filing of an Emergency Rental Assistance Program (the "ERAP") application, pursuant to Chapter 417, laws of 2021, Part A, § 8 (the "ERAP Amend Law"), because this is not an eviction proceeding eligible for coverage under ERAP program and/or Perez is not eligible for ERAP; and

-pursuant to Eviction Restriction Law § 10, scheduling the matter for a trial on a date and time certain."¹

In April 2021, the legislature passed the COVID-19 Emergency Rental Assistance Program ("CERAP"), funded with $2.6 billion for residential rent and utility assistance.

"On August 12, 2021, in the case Chrysafis v. Marks , the U.S. Supreme Court enjoined the enforcement of CEEFPA's residential eviction moratorium, finding that provisions that provided for a tenant to self-certify financial hardship and delayed a landlord from contesting the certification violated constitutional rights to due process. In response, the New York State Legislature amended the statute on September 1, 2021."²

"The legislature is especially cognizant of the ongoing risks posed by residential evictions stemming from non-payment of rent during the height of the public health emergency, and its recovery period, such as the potential to exacerbate the resurgence of COVID-19, the damage significant numbers of evictions would cause to the state's economic recovery, and the deleterious social and public health effects of homelessness and housing instability."³

The amendment addressed the due process argument by providing for a mechanism for a petitioner to make a motion to dispute the validity of the hardship declaration.⁴ There was no such mechanism for the petitioner to dispute the respondent obtaining a stay by filing an application for the Emergency Rent Assistance Program (ERAP).

The petitioner now moves to lift the stay imposed by the respondent's filing of the ERAP application arguing that "this is not a proceeding eligible for coverage under ERAP program and/or Perez is not eligible for ERAP."⁵

"... the stay only applies to proceedings where the respondent(s) would be eligible for ERAP in the first place. So, summary proceedings commenced pursuant to RPAPL § 711, which involve ‘tenants,’ are clearly eligible proceedings. However, proceedings commenced pursuant to RPAPL § 713 clearly cannot be eligible for a stay, because by their very nature they are based on a lack of landlord-tenant relationship."

Subpart A Section 3 of the Act states:

" ‘Tenant’ includes a residential tenant, lawful occupant of a dwelling unit, or any other person responsible for paying rent, use and occupancy, or any other financial obligation under a residential lease or tenancy agreement, but does not include a residential tenant or lawful occupant with a seasonal use lease where such tenant has a primary residence to which to return to."

In support of the respondent's argument, they rely upon the court's ruling in 204 W. 55 Street LLC v. Mackler, et al. (N.Y. Co. 2021), LT-300325/21, 2021 WL 6805121. The court in determining that it did not have the jurisdiction to lift the ERAP stay determined:

"Petitioner asks the court to make a judicial determination, either apart from OTDA or to supplant OTDA's decision, finding that respondents are ineligible for ERAP funds. The ERAP statute provides that the OTDA commissioner is authorized and charged with implementing and administering the financial assistance program. ERAP, Section 1(3). The statute does not provide the Housing Court with the authority to determine whether a person is eligible for ERAP assistance. This ERAP eligibility determination lies solely with OTDA."

Subsequent to the above ruling, there have been decisions weighing in on the issue. The court in Actie v. Gregory , 2022 N.Y. Slip Op. 50117(U), [74 Misc. 3d 1213(A), 2022 WL 534305] vacated the ERAP stay:

"... if respondents’ ERAP application is approved and petitioner accepted the funds, the payment of funds through the ERAP program would not reinstate the landlord-tenant relationship. Consequently, allowing the stay to continue is an exercise in futility and prejudicial to petitioner."

The court in Kelly v. Doe , ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 N.Y. Slip Op. 22077, in distinguishing the facts from its prior ruling in Sea Park East L.P. v. Foster , 74 Misc. 3d 213, 160 N.Y.S.3d 792 (2021), determined:

"To allow individuals, alleged to be squatters, who are not tenants, the benefit of a stay provision of ERAP would be futile and would lead to an absurd result, not contemplated by the statute. (See Hilbertz v. City of New York , 64 Misc. 3d 697, (Supreme Ct., Kings Co. 2019) (Although statutes will ordinarily be accorded their plain meaning, courts should construe then to avoid, objectionable or absurd consequences)."

Most recently, the court in 2986 Briggs LLC v. Evans , 2022 N.Y. Slip Op. 50215(U), 2022 WL 853132 found:

"... the ERAP Law does not provide a specific mechanism for landlords to challenge a stay, as did the revised "hardship declaration" statute promulgated after the enjoining of CEEFPA, Part A in Chrysafis v Marks ,

...