Opinion
Index No. LT-054041-20/QU
10-26-2021
BK PROPERTY, Petitioner(s), v. Dr. GUPTA, Respondent(s).
Petitioner's counsel: Hertz, Cherson & Rosenthal, P.C., 118-35 Queens Boulevard, 9th Floor, Forest Hills, NY 11375 Respondent: Pro se
Petitioner's counsel: Hertz, Cherson & Rosenthal, P.C., 118-35 Queens Boulevard, 9th Floor, Forest Hills, NY 11375
Respondent: Pro se
Wendy Changyong Li, J. I. Background
In a notice of petition and petition filed on March 3, 2020, Petitioner commenced a nonpayment proceeding against Respondent in connection with premises located at 144-XXX Roosevelt Avenue, Suite XXX, Flushing, NY 11354 ("Premises "). In an order dated December 23, 2020, the court (U., J.) awarded Petitioner a judgment of $25,500.00 and issued a warrant of eviction with execution stayed until February 1, 2021. Petitioner now moved for an order issuing and allowing execution of the warrant of eviction. Respondent did not oppose the Motion. After Respondent failed to appear in Part 52 on September 13, 2021, as scheduled, this Court instructed Petitioner to perform additional service upon Respondent through phone call, email and personal service pursuant to CPLR communicating the next court date. When Respondent failed to appear again on the next scheduled court date of October 4, 2021, the Motion was submitted on default.
II. Discussion and Decision
Petitioner requested that this Court order issuance and allow execution of the warrant of eviction. Since the court had already issued a warrant of eviction in December 2020, Petitioner's request to issue a warrant of eviction is denied as academic.
On September 2, 2021 ("Effective Date "), Governor Kathy Hochul signed into law 2021 Senate-Assembly Bill S50001-A40001 ("Act "). Among other things, the Act amended various laws enacted in response to the Covid-19 pandemic, namely the Tenant Safe Harbor Act enacted on June 30, 2020 ("TSHA "), Covid-19 Emergency Protect Our Small Businesses Act dated January 6, 2021 ("CEPOSBA "), the Covid-19 Emergency Eviction and Foreclosure Prevention Act dated April 23, 2021 ("CEEFPA ", and collectively with TSHA and CEPOSBA, the "Prior Acts "), extended the Prior Acts' effective dates to January 15, 2022, and combined the Prior Acts into the Act. Relevant to the issues involved in our instant case, CEPOSBA is now Part B of the Act. Act, Part B, Subpart A § 6[2] provides:
In any eviction proceeding in which a warrant or execution has been issued,
including eviction proceedings filed on or before March 7, 2020, any warrant or execution issued shall not be effective as against the occupants, unless, in addition to other requirements under law, such warrant or execution states:
[a] [t]he tenant has not submitted the hardship declaration and the tenant was properly served with a copy of the hardship declaration pursuant to this section, listing dates the tenant was served with the hardship declaration by the petitioner or plaintiff and the court; or
[b] [t]he tenant is ineligible for a stay under this act because the court has found the tenant's hardship claim invalid, or that the tenant intentionally caused significant damage to the property, or the tenant is 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, with a specific description of the behavior.
In addition, the courts may not issue, and officers may not enforce warrants of eviction that do not comply with the above requirements (see Act, Part B, Subpart A §§ 3 and 4).
In our instant case, Petitioner presented no evidence that Respondent failed to file a hardship declaration or caused property damage, infringed on other tenants' use and enjoyment, or caused a safety hazard. Therefore, the warrant of eviction cannot be executed until the expiration date of the Act or upon resolution of the hardship declaration prior to the expiration of the Act. This Court notes that Petitioner served a hardship declaration form with its notification upon Respondent of the adjournment date, however, failed to present evidence that Respondent failed to provide hardship declaration to Petitioner. This Court also notes that the court has not received a signed hardship declaration from Respondent as of the date of this decision and order.
In general, judgements of possession and warrants of eviction in commercial landlord-tenant matters in relation to the Act occur in the following three different time frames:
1) No Judgment of possession or warrant of eviction was issued prior to or after March 7, 2020;
2) Judgments of possession and warrants of eviction were issued prior to March 7, 2020; and
3) Judgments of possession and warrants of eviction were issued on or after March 7, 2020.
It is noted that TSHA, the origin of the Act, stated that a tenant facing eviction in a nonpayment proceeding could move to stay the eviction if the tenant could prove financial hardship in court during the "covered period" which began on March 7, 2020. Although subsequent CEPOSBA, CEEFPA and the Act extended the expiration date of the "covered period", none of the acts had revised the beginning date of the "covered period." As a result, March 7, 2020 remains to be the beginning date of the "covered period."
Here, the Motion was filed on August 10, 2021, prior to the Effective Date of the Act. However, the first return date of the Motion was September 13, 2021 and the Motion was submitted on default on October 4, 2021, both after the Effective Date of the Act. Although there is a strong presumption that a law applies prospectively, not retroactively ( Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal , 35 NY3d 332, 370 [2020] citing Landgraf v. Usi Film Prods. , 511 US 244 [1994] ; Majewski v. Broadalbin-Perth Cent. Sch. Dist. , 91 NY2d 577 [1998] ; Gleason v Gleason , 26 NY2d 28 [1970] ; Chrysler Properties, Inc. v Morris , 23 NY2d 515 [1969] ), this Court takes into consideration of the Motion submission date, the legislative intent, and the totality of the statutory and case law history regarding hardship declaration issue during the COVID-19 pandemic, this Court applies the Act addressing the hardship declaration matter in the instant case.
The issue before this Court herein falls within the third category indicated above when judgments of possession and warrants of eviction were issued after March 7, 2020. The procedural posture of our instant case contrasts other potential situations for which the Act imposes additional requirements in commercial landlord-tenant proceedings as summarized below.
If no judgment of possession or warrant of eviction had yet been issued as indicated in the above category one, a landlord could only seek removal of the tenant by eviction proceeding (see Act, Part B, Subpart A, § 2). In cases where no judgment of possession or warrant of eviction had been issued, the tenant's filing of a hardship declaration would stay the proceedings until at least January 15, 2022 (Act, Part B, Subpart A, § 5). Presumably, if the tenant had not filed a hardship declaration, execution of any warrant of eviction or judgment would not be stayed and the landlord would be able to continue with the proceeding to obtain a final judgment determining parties' rights (see RPAPL 747 ) and then a warrant of eviction (see RPAPL 749 ) if the landlord proves its case (see Point 128, LLC v. Sound De Point LLC , 73 Misc. 3d 746, 155 N.Y.S.3d 731 [Civ. Ct., Queens County 2021] ). The Act does not mention status conference call in this situation.
If a judgment of possession and warrant of eviction were issued prior to March 7, 2020 but warrant are yet to be executed as indicated in the above category two, unlike our instant case, then the court must "stay execution of the warrant or judgment at least until the court has held a status conference with the parties" (Act, Part B, Subpart A, § 6[1][a]; see Northern Blvd. Realty v. S. Kibbutz Restaurant Inc. , 73 Misc. 3d 1209[A], 2021 N.Y. Slip Op. 50987[U], 2021 WL 4930046 [Civ. Ct., Queens County 2021] ), The Act does not indicate the purpose of the status conference, but since the Act requires a status conference before the execution of the warrants of eviction, for warrants and judgments of possession issued on or before March 7, 2020, the intended protections of the Act, which is a legislation in response to the COVID-19 pandemic, are likely not implicated. Upon conclusion of the status conference, presumably, a landlord would be able to continue with the proceeding to obtain a judgment of possession and issuance of warrants (see RPAPL 747 ; 749) if the landlord proves its case.
Under any of the situations discussed above, including our instant proceeding, however, in order for a landlord to obtain a warrant of eviction that the court may properly issue and that an officer may properly execute, the warrant must comply with the requirements of section 6 of the Act (see Act, Part B, Subpart A, § 6[3] and [4]). As addressed above, Act, Part B, Subpart A, § 6[2] sets forth the requirements for an effective warrant of eviction. Moreover, the Act allows a tenant to stay execution until January 15, 2022 by filing a hardship declaration. Act, Part B, Subpart A, § 6[1][b] provides:
"In any eviction proceeding, if the tenant provides a hardship declaration to the petitioner or plaintiff, the court, or an agent of the petitioner or plaintiff or the court, prior to the execution of the warrant or judgment, the execution shall
be stayed until at least January 15, 2022."
Act, Part B, Subpart A, § 6[5] also provides:
"Unless the warrant or execution contains the information contained in paragraph b of subdivision 2 of the section, if any tenant delivers the hardship declaration to the officer to whom the warrant or execution is directed, the officer shall not execute the warrant or execution and shall return the hardship form to the court indicating the appropriate index/case number the form is associated with."
The term "officer" includes marshal pursuant to this Court's reading of the Act. As a result, a tenant may prevent an officer/marshal from executing a warrant of eviction or judgment by delivering a hardship declaration to the officer/marshal, except if the tenant is ineligible for a stay pursuant to Act, Part B, Subpart A, § 6[2][b] (see Act, Part B, Subpart A, § 6[5]).
Finally, in response to the United States Supreme Court striking down as violative of due process the provision of the CEEFPA which allowed a tenant's self-certified hardship declaration to delay a landlord's challenge to such certification (see Chrysafis v. Marks , ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006 [2021] ), the Act now allows a landlord to file a motion requesting a hearing to challenge the validity of a hardship claim (see Act, Part B, Subpart A, § 10). Upholding the hardship declaration by the court would continue the stay (id. § 10[2]), while invalidating the hardship declaration would mandate that proceedings to "continue to a determination on the merits" (id. § 10[3]).
III. Order
Accordingly, it is
ORDERED that Petitioner's Motion to issue a warrant of eviction is denied as academic; and it is further
ORDERED that the warrant of eviction previously granted to the Petitioner shall be stayed until the expiration date of the Act or upon Petitioner's compliance with the requirements of section 6[2][a] of Part B, Subpart A of 2021 NY Senate-Assembly Bill S50001-A40001, whichever is earlier.
This constitutes the court's Decision and Order.