Kelly v. Doe

75 Misc.3d 197

166 N.Y.S.3d 481

Valerie Hope KELLY, Petitioner,

v.John DOE NO.1, John Doe #2, John Doe #3, John Doe #4, John Doe #5, John Doe #6, John Doe #7, John Doe #8, John Doe #9, John Doe #10, John Doe #11, John Doe #12¹ 1320 East 92nd Street Brooklyn, New York 11236, Respondent-Undertenants.

Index No. LT No. 308750/20

Civil Court, City of New York, Kings County.

Decided on March 18, 2022

Coran Ober P.C., Flushing (Steven T. Beard of counsel), for petitioner.

Hannah Cohen, J. The Decision and Order on this motion is as follows:

Petitioner commenced this holdover proceeding seeking possession of the premises by a ten day notice to quit on or about September 14, 2021. In November 2021 Jean Felisor Bey appeared and the case was adjourned for an office of civil justice referral to December 8, 2021. On December 8, 2021 the case was again adjourned for re referral for Mr. Bey, and for Michael Charles to retain private counsel. The court was then notified that an ERAP application was filed and the case was placed on the ERAP administrative calendar.

Petitioner now by motion seeks to lift any stay based upon the ERAP application. Petitioner argues that respondent(s) do not qualify as "tenants" as defined by the COVID-19 Emergency Rental Assistance Program (ERAP) under part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417 and seeks restoration of the case for trial against Respondent John Doe #1 a/k/a Jean Felisor-Bey and John Doe #2 a/k/a Michael Charles and upon restoration seeking a default judgments versus the other remaining respondents.

The court notes that service of the motion was proper and respondents failed to appear on the return date of the motion, March 9, 2022. The motion was then marked submitted on March 9, 2022.

In support of petitioner's motion, petitioner attaches the following documents: (1) copy of notice of petition and petition; (2) affidavits of service of notice of petition and petition; (3) affidavit of support by petitioner's attorney and Hope Kelly, the petitioner; (2) copy of prior judgment of possession for this property issued under index# 59169/19 on August 28, 2019; (3) copy of the deed indicating a transfer form U.S. Bank to Hope Kelly dated June 5, 2021; (4) affidavit of service of notice to tenant with COVID-19 Hardship Declaration; (5) email from court indicating notice of ERAP application; (6) affirmation of military investigation and (7) affidavit of service.

Petitioner states that it purchased the building on or about May 11, 2021. Prior to purchasing the building, the prior owner, U.S. Bank had commenced a prior summary proceeding under index No. LT #59169/19. The former owner obtained a judgment of possession against all the occupants on June 12, 2019 including John and Jane Does. The warrant of eviction was executed by Marshal Guida on December 3, 2019, removing all occupants from the premises. U.S. Bank then sold the premises to the petitioner on April 26, 2021, date of delivery on May 11, 2021 and recorded on June 5, 2021. Subsequent to the purchase of the building, petitioner discovered that after the marshal took possession in 2019, the locks were removed and that unknown persons were occupying the premises. Petitioner states that at the time of commencement of this proceeding, the respondents had refused to provide their names and thus there were named as "John Doe" respondents. Petitioner argues that as respondents are squatters they do not meet the definition of "tenants" as defined by the COVID-19 Emergency Rental Assistance Program (ERAP) under Part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417.

Petitioner argues that it has not sought any use and occupancy or rent and that respondents are not tenants or a household entitled to the stay provision based upon an ERAP application. Section 8 of subpart A of part BB of chapter 56 of the laws of 2021 as modified by L. 2021, c. 417 provides "except as provided in section nine-a of this act, in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administrating federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility." Petitioner further points out that Section 5 of the subpart A of part BB of chapter 56 of the laws of 2021, provides that "A household shall be eligible ... a household shall be eligible if it: (I) is a tenant or occupant obligated to pay rent in their primary residence in the state of New York ...". the term "rent" is further defined in Section 2 of the subpart A of part BB of chapter 56 of the laws of 2021 and references RPAPL section 702 which states rent shall mean a weekly or monthly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement."

Petitioner agues that respondents are neither tenants nor lawful occupants and have no written or oral agreement to pay rent. Petitioner refers this court to the prior proceeding under index No LT #59169/19 wherein the former owner, U.S. Bank Trust N.A. which acquired the premises pursuant to a foreclosure and referees deed in 2017, obtained a judgment of possession against Shaun Tomlinson, Ericka Tomlinson, Fred Tomlison, Larry Washington, Gary Dorman aka Gary Dormer, Shandell Stevenson, Michael Charles, Omalayo Stevenson, Shondelle Stephen, John Does and Jane Does on June 12, 2019. In that proceeding other individuals also sought by order to show cause to vacate the judgments, to wit: Shallah Ra'heem Bey, Llewellyn-Bey, Sherwin Stephen, Omatoyo Neverson, and well as Gary Dorman aka Gary Dormer. In all 11 order to show causes were filed in the previous case, and all were denied for lack of appearance, standing and or merit. The marshal execute the warrant and obtained legal possession of the entire premises on or about December 3, 2019.

In the present case, Michael Charles and Jean Felisor Bey appeared in court. Mr. Charles declined a referral to OCJ and stated he would be hiring private counsel and Mr. Bey was referred to the office of civil justice for a legal services provider. Brooklyn Legal Services then informed the court that they were unable to reach Mr. Bey despite several attempts to do so. Subsequently, the court was informed that an ERAP application had been filed.

The court is aware that the legislature in enacting laws determines the public policy...