Opinion
Index No. 55673-2019
03-09-2023
Buddy Associates LLC, Petitioner, v. Dionne Ahart, Respondent-Tenant.
For Petitioner: Richard Philip Langer For Respondent: Mobilization for Justice, Inc.
Unpublished Opinion
For Petitioner:
Richard Philip Langer
For Respondent:
Mobilization for Justice, Inc.
HON. SHORAB IBRAHIM, JUDGE
RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE PETITIONER SEEKING TO VACATE A STAY: NYSCEF Documents No. 11 through 20.
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
DISCUSSION
When a tenant applies for the Emergency Rent Assistance Program (ERAP), an automatic statutory stay is triggered. (see Harmony Mills West, LLC v Constantine, 75 Misc.3d 594, 595, 169 N.Y.S.3d 476 [City Ct, Cohoes 2022]; 653 LLC v Rosa-Blanco, 77 Misc.3d 1225 (A), *1 [Civ Ct, Bronx County 2023]). Here, the respondent, a holder of a NYCHA Section 8 voucher, filed for ERAP shortly after a two-attorney stipulation of settlement was executed on June 8, 2021. That stipulation stayed execution of the warrant of eviction through August 31, 2021 for payment of $5,627.63. (see NYSCEF Doc. 9).
Petitioner now moves to vacate the stay. The motion is supported with a one-page affidavit noting only that there is rent owed, the tenant is a recipient of Section 8 benefits, and that there is a pending ERAP application which "has had no activity for at least 6 months." (see NYSCEF Doc. 11 at p. 2). Petitioner's only supporting exhibits are a rent ledger and a copy of the June 2021 stipulation. (id. at p. 6-9).
In opposition, the respondent submits eight exhibits and a ten-page attorney affirmation replete with citation to statute, administrative orders and numerous cases where courts refused to vacate ERAP stays, even when the applicant resided in subsidized housing and the ERAP application was pending for many months. (see NYSCEF Docs. 12-20).
Respondent points out that OTDA has now reviewed non-subsidized tenant applications through November 30, 2022 (see NYSCEF Doc. 12 at par. 22 citing exhibit B at Doc. 14) and extrapolates that all non-subsidized tenant applications should be reviewed in the next few months. (id. at par. 30). Thereafter, subsidized tenant applications, in theory, would be reviewed in order of receipt. Respondent further argues that when subsidized tenant applications, like respondent's, are reviewed, there may be funds available to pay them. (see id. at par. 33-39 citing exhibits E-H). Under this scenario, respondent argues that the ERAP stay is far from futile.
Petitioner chose not to submit a reply.
The question is not whether the court has authority to vacate ERAP stays. This court considers that question settled in the affirmative. (see e.g. Laporte v Garcia, 75 Misc.3d 557, 559 [Civ Ct, Bronx County 2022] ("determining whether a stay applies or should be lifted, based upon the particular circumstances of a proceeding, is in the court's realm")). In deciding whether to vacate an ERAP stay, it is necessary that the court be presented by the party seeking the stay "the particular circumstances," (id.), that might require lifting the stay.
Here, petitioner has failed this basic requirement and the motion must be denied. Petitioner's motion has no legal or factual support. There is no discussion of prejudice or futility or any legal or factual analysis that might support lifting a stay. In Bay Park Two-A LLC v Pearson, for instance, the petitioner argued that the tenant's application might never be paid, that even if it were paid, the arrears far exceeded the maximum ERAP award, and that the ERAP stay was prejudicial because the stay remained while arrears that would not be paid by ERAP piled up. (see 77 Misc.3d 534, 536 [Civ Ct, Kings County 2022]). Ultimately, the court vacated the stay because "based on the facts presented and history of the case." (id at 542).
Petitioner, in essence, asks the court to vacate the stay solely because the tenant's rent is subsidized and because the application it at least six months old. To grant relief on this thin basis would create a de facto rule where any ERAP stay could be lifted because of the passage of time alone. While respondent's counsel zealously represents the respondent and responds to arguments the petitioner might have made, it is not for this court to consider the potential prejudice petitioner has not raised or other arguments it does not mention.
The court surmises from petitioner's limited submission that petitioner has run out of patience. Impatience, as one court recently held, is no reason at all for lifting an ERAP stay. (see Mangan Realty v Barzey, Civ Ct, Bronx County, Dec. 16, 2022, Hahn, J., index. 56361/19).
Consequently, the motion to vacate the ERAP stay is denied. This constitutes the decision of the court. It will be posted to NYSCEF.
SO ORDERED.