Opinion
Index No. L & T 56877/20
12-03-2021
115 SPRING, INC., Petitioner, v. Theodore AUGUSTINE, Respondent.
Jason Fuhrman, Esq., Craig Zim, Esq., Novick Edelstein Pomerantz P.C., 733 Yonkers Avenue, Yonkers, NY 10704, Attorneys for Petitioner Elizabeth Harrington, Esq., New York Legal Assistance Group, 100 Pearl Street, 19th Floor, New York, NY 10004, Attorneys for Respondent
Jason Fuhrman, Esq., Craig Zim, Esq., Novick Edelstein Pomerantz P.C., 733 Yonkers Avenue, Yonkers, NY 10704, Attorneys for Petitioner
Elizabeth Harrington, Esq., New York Legal Assistance Group, 100 Pearl Street, 19th Floor, New York, NY 10004, Attorneys for Respondent
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's order to show cause for a hearing to vacate the stay effectuated by the filing of a hardship declaration dated August 13, 2021:
PapersNumbered
Order to Show Cause & Affirmation/Affidavit/Exhibits Annexed 1 (NYSCEF No. 5-7)
Affirmation in Opposition & Affidavit/Exhibits Annexed 2 (NYSCEF #8)
Upon the foregoing cited papers, the decision and order on petitioner's motion is as follows.
PROCEDURAL HISTORY
This nonpayment proceeding was commenced in September 2020. Before any proceedings were had in the proceeding, respondent, through counsel, filed a COVID-19 hardship declaration dated August 13, 2021 on September 8, 2021, which stayed the proceeding pursuant to L 2021, ch 417. Thereafter, petitioner brought the instant order to show cause for a hearing to vacate the stay effectuated by the filing of the hardship declaration. The order to show cause was signed by Judge Maria Ressos on November 16, 2021 and given a return date of November 30, 2021. Prior to November 30, 2021, respondent, through counsel, filed opposition papers. On November 30, 2021, the court heard argument on the order to show cause via Teams and reserved decision.
DISCUSSION
Petitioner seeks a hearing to challenge respondent's hardship declaration. The relevant statute reads: "[a] motion may be made by the petitioner, attesting to a good faith belief that the respondent has not experienced a hardship, with notice to the respondent, and the court shall grant a hearing to determine whether to find the respondent's hardship claim invalid." L 2021, ch 417, Part C, Subpart A, Sec. 10. Petitioner's motion is supported by an attorney affirmation and an affidavit from Glen Bakhshi, petitioner's agent. Mr. Bakhshi's affidavit reiterates the rents sued for in the petition, and states that petitioner has a good faith belief that respondent is not facing a hardship insofar as he "has not worked for the last fifteen (15) years and he does not leave his apartment, because he claimed that he is blind. [He] is receiving money directly from government public assistance, welfare, pension and military benefits. We believe these funds are in his bank account." (Bakhshi Affidavit, ¶ 5).
Respondent opposes the order to show cause, asserting that petitioner has not sufficiently demonstrated a good faith belief that respondent is not experiencing a hardship and disputing that petitioner has challenged the "Option B" box of the hardship declaration (which relates to being at increased risk of severe illness or death from COVID-19 due to age and/or health conditions). As to the first argument, although petitioner does not support Mr. Bakhshi's statements with documentation, the bar for demonstrating good faith under the statute has generally been low, as observed by District Judge Gary R. Brown earlier this week in denying a preliminary injunction of the current law (L 2021, ch 417) in Chrysafis v. Marks , 2021 U.S. Dist. LEXIS 227977, *29, 2021 WL 5563571 [ED NY, Nov. 29, 2021, No. 21-cv-2516] ["[I]n examining the implementation of the statute, it appears that courts have been construing the statute liberally, safeguarding landlords’ right to challenge hardship declarations."]. The allegation here that respondent's financial situation has effectively remained unchanged during the pandemic would be sufficient to demonstrate a good faith belief of the lack of financial hardship. See e.g. Bitzarkis v. Evans , 2021 N.Y. Slip Op. 21280, 73 Misc.3d 827 [Civ Ct, Kings County 2021].
However, petitioner makes no allegation whatsoever about the "Option B" box checked by respondent on the hardship form, except to acknowledge that respondent has represented that he is blind. The opposition papers include an affidavit from respondent, stating that he is 71 years old, legally blind, and served by home health aides five (5) days a week to assist with daily living tasks. He also states that he would be endangered by COVID-19 if he were evicted because of his age and health conditions. Annexed to the opposition papers is respondent's New York State ID card, which includes a date of birth of August 15, 1950, and a CDC (Centers for Disease Control and Prevention) fact sheet on COVID-19 risks for older individuals.
Petitioner has not submitted any rebuttal of the statements in respondent's affidavit or the exhibits. Consequently, even if petitioner were granted a hearing on the financial hardship ("Option A") and demonstrated that no financial hardship existed, respondent would nonetheless be entitled to a stay as a result of the unchallenged "Option B" portion of the declaration. The court will not interpret the statute to require a hearing where an unchallenged basis for the stay remains. See e.g. Matter of Walsh v. New York State Comptroller , 34 N.Y.3d 520, 524, 144 N.E.3d 953 [2019] ["A statute ‘must be construed as a whole and [ ] its various sections must be considered together and with reference to each other.’ "] Quoting Matter of New York County Lawyers’ Assn. v. Bloomberg , 19 N.Y.3d 712, 721, 955 N.Y.S.2d 835, 979 N.E.2d 1162 [2012] ; In re Warren A. , 53 A.D.2d 400, 404, 385 N.Y.S.2d 590 [2d Dept 1976] ["We should not ascribe to the Legislature an intent which renders the language of [a] statute surplusage and without significance."].
Nonetheless, the court stresses that although the Section 10 language refers to a right to challenge "hardship," this must necessarily encompass the ability to challenge both Options of the hardship declaration to comport with the US Supreme Court's due process considerations outlined in Chrysafis v. Marks , ––– U.S. ––––, 141 S Ct 2482, 210 L.Ed.2d 1006 [2021]. Indeed, Section 2 of L 2021, ch 417, entitled "Legislative intent," specifically notes that "it is necessary to modify the residential eviction moratorium to address the Supreme Court's due process concern[.]"
Since petitioner has not set forth a good faith belief that respondent is not within the category described in "Option B" of the hardship declaration, the order to show cause is denied, without prejudice to petitioner's right to renew a challenge under L 2021, ch 417, Part C, Subpart A, Section 10.
CONCLUSION
Upon the foregoing determinations, petitioner's order to show cause is denied without prejudice. The proceeding remains stayed pursuant to L 2021, ch 417, Part C, Subpart A, Section 4. This Decision/Order will be filed to NYSCEF.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.