Opinion
No. 2023-50102 Index No. 311931/22
02-15-2023
1106 Remsen Realty LLC, Petitioner, v. Shequilla Hayden, Respondents.
Unpublished Opinion
Michael L. Weisberg, J.
Michael L. Weisberg, JHC.
The following e-filed documents, listed by NYSCEF document numbers 15-16 (motion no. 2), were read on this motion for a stay/extension of time for Respondent to pay the agreed upon rent arrears.
The parties settled this nonpayment summary eviction proceeding settled on August 30, 2022, with an agreement granting judgment to Petitioner and staying execution of the warrant of eviction on condition that Respondent pay rent arrears plus ongoing rent by October 31, 2022. It was made known at the time of settlement that Respondent intended to apply for the Family Homeless Eviction Prevention Supplement (FHEPS) to pay her rent arrears and ongoing rent, based on her eligibility due to having minor children in the household and an open (or soon to open) public assistance case. Having failed to pay the arrears on time, or since, Respondent has moved for stay of eviction. Because no information has been provided to the court regarding the status of the FHEPS application, and because over three months have passed since payment was due, the motion is denied.
The FHEPS program resulted from a settlement of the class action Tejada v Roberts, Sup Ct, NY County, index No. 453245/15 (available via NYSCEF, Doc. 97). Changes to FHEPS, including increases in the amount of rent arrears that will be paid and rental amounts, have been made since its creation.
At the time of settlement, the court scheduled an appearance for October 27th, a few days before the October 31st date for payment, for the purpose of ascertaining the status of Respondent's application for FHEPS. It is exceedingly rare for a tenant seeking rent arrears assistance via various government programs to pay the arrears they owe by the date that they agree to do so. In almost every case the proceeding will return to court, either by a landlord's motion for enforcement or a tenant's motion for a stay. In the court's experience, it was all but inevitable that the following would transpire in this case: first, Respondent would fail to pay the arrears by October 31st; then, Petitioner would then reflexively avail itself of its right under the agreement to evict Respondent after serving an eviction notice; next, Respondent would travel to court to file an order to show cause requesting a stay of eviction. By scheduling a status conference to check on the status of Respondent's FHEPS application, the court hoped to reduce the parties' uncertainty about final resolution of their dispute, to dispense with excessive paperwork (e.g., eviction notices, motions), fees (e.g., for attorneys and marshals), and trips to the courthouse, and to reduce calendar volume brought on by successive orders to show cause.
The court has no illusions that most tenants appearing pro se have a basis to believe that they will be able to pay their rent arrears by the date to which they agree. While it is not atypical for attorneys for landlords to assert that "my client will agree allow for X days for payment" (where "X" typically will be an arbitrary 30, 45, or 60 days) few operate under the assumption that the arrears will be paid by the agreed upon date, and most will readily acknowledge that the tenant's time to pay will be extended, often with the landlord's agreement. Unexpectedly, the situation is little different when the tenant is represented by an attorney. The bottom line is that few tenants facing eviction for nonpayment have the ability to pay the rent arrears that they owe. By and large, nonpayment eviction proceedings are resolved by payment of rent arrears through various government-funded programs, over which the court, landlords, tenants, and their attorneys have no control.
Respondent failed to appear in court on the date set for the status conference. Had she appeared, the court would have inquired as to what information she had regarding her FHEPS application and would make inquiries of Homebase or HRA, whichever applicable, to determine whether any additional documents were required from Petitioner or Respondent (or the court), at what stage of the process the application was, and when an approval and issuance of checks might be expected. This process can result in the parties agreeing to a further stay of eviction, thus eliminating the need for service of an eviction notice, a tenant making an extra trip to the courthouse and the post office (typically a tenant would come to court first to file an order to show cause, then go the post office to mail the order to show cause, then return to court one to three weeks later), and a landlord paying its attorney to draft pro forma opposition papers to the motion for a stay.
Respondent did not pay her arrears on time. Petitioner had an eviction noticed served. Respondent moved for a stay. The court scheduled the motion for a day of the week on which one of the non-profit law firms paid for by the City of New York pursuant to its so-called "universal access to counsel law" or "right to counsel law" is in the courtroom to assist tenants. The motion was adjourned, and by the return date Respondent had retained counsel. But unfortunately, disappointingly, and paradoxically, since the agency that pays Respondent's counsel to represent her is the same agency that processes and approves her FHEPS application, Respondent's counsel had no information to share with the court regarding the status of her application.
The moniker "right to counsel law" conveys a gross mischaracterization of what the statute actually requires. Neither Article 7 of the New York State Real Property Actions and Proceedings Law ("Summary Proceedings to Recover Possession of Real Property") nor any other state law have been amended. Instead, the New York City Administrative Code was amended to include a chapter entitled "Provision of Civil Legal Services in Eviction Proceedings (Administrative Code of City of NY, tit 26, ch 13). The law requires the Office of Civil Justice of the New York City Human Resources Administration to "establish a program to provide access to legal services for covered individuals in covered proceedings in housing court" (Administrative Code § 26-1302[a]), including "full legal representation" for "all income-eligible individuals" (Administrative Code § 26-1302[a][2]). As a practical matter, the law makes the City a funder of free legal services, no different than any other private funder of free civil legal services (e.g. a foundation or wealthy individual). There is nothing in law to delay evictions proceedings from going forward even if the tenant does not have an attorney. No tenant has a "right" to an attorney in an eviction proceeding, at least no more than any landlord does.
The court is not faulting counsel for the lack of information. Lack of information in this context is standard.
The only information available from Respondent on was her stated belief that her application had been submitted to the Human Resources Administration. Respondent provided the court with the telephone number of her caseworker at the Catholic Charities Homebase provider and the court called (on the record). The call went straight to voicemail. The court then called the main Catholic Charities Homebase telephone number and informed the person answering the telephone that it was seeking information on Respondent's FHEPS application because it had to decide whether to grant her motion for a stay of execution of the warrant of eviction.
After being placed on hold for some time, the court was informed that the caseworker was out of the office and that the caseworker's supervisor would be able to provide the information, but that she was occupied with another matter. As it was close to the end of the morning session, the court directed the parties to return to court the afternoon session. When the parties returned, the court called Catholic Charities again. The supervisor was still unavailable, but the person who answered the telephone informed the court that they had information that the application had been submitted to HRA, at some unknown time. The court declined to continue its investigation by attempting to reach a representative from HRA for additional information.
The power of the court to vacate a warrant of eviction prior to its execution, and by extension, to stay execution of the warrant, for "good cause shown" is well established (see e.g. Harvey 1390 LLC v Bodenheim, 96 A.D.3d 664 [1st Dept 2012]). Particularly after enactment of the Housing Stability and Tenant Protection Act of 2019 (L 2019, ch 36), which removed most incentives for a landlord to evict rent-paying tenants of rent-regulated apartments, as long as the tenant is paying ongoing rent and simply needs assistance with payment of rent arrears, there is little rational basis to oppose a stay of eviction while the tenant seeks those monies. After all, were the landlord to evict that tenant, in most cases the best it could do would be to replace them with another tenant who will pay nearly the same rent, but who of course will not pay the former tenant's rent arrears.
In this case, however, where Respondent's income is from public assistance and the only rent being paid is a $283.00 per month shelter allowance, the arrears are increasing; the status quo is not maintained. And while the Respondent is eligible for FHEPS, because she has an open public assistance case and minor children, her rent arrears are significantly over the $20,000.00 maximum amount of rent arrears that will be paid through FHEPS. No allegations have been made by Respondent to suggest how the remaining arrears will be paid, other than a representation in court that other sources will be sought after. Most saliently, over three months have passed since the rent arrears were due. The court has not been furnished with any information as to when the FHEPS application was submitted, what accounted for any delay in submission, and what has accounted for any delay in approval. Under these circumstances "good cause" has not been established.
Higher amounts may be approved on a case-by-case basis.
Though Petitioner may decide that evicting Respondent and being relegated to collecting on a judgment against a public assistance recipient might be less desirable than accepting than accepting cents on the dollar and maintaining the tenancy.
"The tenant has applied for assistance from HRA" is not an incantation that will automatically stay an eviction. Respondent may re-move for a stay with sufficient evidence regarding her application to HRA for assistance in paying her rent arrears. It is ORDERED that this motion is denied.
This is the court's decision and order.