Opinion
LT-466-19/HU
07-28-2021
Patricia BIBOW, Petitioner v. Marcella BIBOW, Respondent
Stanley J. Somer, Esq., Somer & Heller, LLP, Attorneys for Petitioner, 5036 Jericho Turnpike, Suite 301, Commack, New York 11725, Marcella Bibow, Pro Se
Stanley J. Somer, Esq., Somer & Heller, LLP, Attorneys for Petitioner, 5036 Jericho Turnpike, Suite 301, Commack, New York 11725, Marcella Bibow, Pro Se
The petitioner, Patricia Bibow (hereafter "the mother") petitions this Court to enforce a stipulation dated January 16, 2020 wherein the respondent Marcella Bibow (hereafter "the daughter") agreed to remove herself from the mother's real property premises on or before September 30, 2020, and for the Court to renew and substitute a duplicate warrant of eviction. The daughter has not appeared in opposition to the application but has filed a "Tenant's Declaration of Hardship During the Pandemic" dated March 30, 2021, which checks off both Box A, "Financial Hardship" as well as Box B, "Significant Health Risk" categories.
Undisputed Facts
The undisputed relevant facts of this matter are that the daughter is a licensee of the mother who, prior to the COVID-19 emergency, stipulated to vacate her mother's premises by September 30, 2020. The daughter, at the time, was represented by counsel. A warrant of eviction was issued on March 19, 2021 arising from the vacature default by the daughter. The New York State Office of Court Administration (hereafter "OCA"), in conjunction with directives from the New York State Executive Branch of Government, and the Suffolk County Sheriff's office declared the subject warrant of eviction invalid and directed that the matter be reconferenced.
Issue Presented
Does New York State's COVID-19 moratorium law mandate a stay of all eviction proceedings until August 31, 2021, without the occurrence of a judicial hearing, if the respondent files a hardship declaration as provided for in Chapter 73 of the laws of 2021 relating to the COVID-19 Emergency Protection Act (hereafter "COVID-19 Stay or Moratorium Act")?
The Law
New York State's Courts are in a somewhat confused state as to whether the COVID-19 Stay Act requires an automatic adjournment of any post COVID-19 (post March 2020) summary proceeding until September 1, 2021, if the respondent files a "Hardship Declaration". There exists little reported caselaw on the issue as many Court's have heeded OCA's advise and automatically declined to schedule any hardship declaration cases until after September 2021. Respondent oriented arguments have been advanced before this Court in other cases asserting that the September stay is automatic with no hearing being allowed. Some have argued that a "Good Faith" hardship claim hearing is contemplated by the statute if the respondent elects to check Box A (financial hardship); but that no challenge can be raised and heard by a Court if the Box B "significant health risk" is checked. See, Piscioncei v. Gori, 2021 WL 189636, 2021 NY Slip Op 30096(U) (NY Civ. Ct. 2021) One New York State Supreme Court in a foreclosure case opined that the COVID-19 Stay Act allows a standing challenge of a declared hardship. Southern Acquisition Co., LLC v. TNT, LLC, 71 Misc. 3rd 1002; 2021 NY Slip Op 21084 (Sup. Ct. Ulster Co. 2021). This Court also allows landlords to assert a "standing" challenge to all aspects of the applicability of the hardship moratorium. See, Omega Melville, LLC v. Fusion Management, Inc. , 2021 NY Slip Op 21186.
In Fact, OCA's advise is to reject petitions which are accompanied by a hardship declaration.
A review of COVID-19 Moratorium reveals the legislature's use of the words Tenant, Tenancy or lease agreement in the statute which contains the mandated "Hardship Form" language, at least a dozen times. Both the law and its statutorily proscribed form assert that the declaration must be from a "person responsible for paying rent ... or any other financial obligation under a lease or tenancy agreement ..." Clearly the COVID-19 Moratorium applies to tenants. However, familial licensees, who have no financial obligation, such as the daughter herein are not tenants as described by the statute. Similarly, holdover occupants after a foreclosure (occupants at "sufference") are not protected "tenants" as well as live in health care worker licensees who remain squatters after their services are terminated by the death of the tenant. (See, Paumanack Village II, LP v. Zhao , Index No. LT-160-20 decided July 8, 2021). This list of non included occupants is not exhaustive.
Addressing the threshold issue of the uncontestability of a hardship declaration; such a posture would surely violate the landlord's due process constitutional rights. Probably the most fundamental element of "due process" is the concept that all parties have "the opportunity to be heard" . Mullane v. Central Hanover Bank trust Co. , 339 U.S. 306 (1950). In the instant proceeding, the matter was settled over 18 (eighteen) months ago. It would be incomprehensible to find that the legislature would vitiate the constitutional premise of due process to allow a party to obtain a unilateral stay of her eviction without resort to a judicial forum to hear the landlord's assertion of a "standing" objection to same.
The Court notes the absence of an appearance by the respondent and/or the submission of opposition papers. Accordingly, the Court re-issues a judgment of possession and a warrant of eviction, without stay. Submit appropriate paperwork.