Opinion
Docket No.: 22100346
03-20-2023
GREENBURGH HOUSING AUTHORITY, Petitioner-Landlord, v. Tawanna PORTER, Respondent-Tenant, and Resena Porter, Respondent-Tenant.
Attorneys for the Petitioner, Mark A. Guterman, Esq., Lehrman, Lehrman & Guterman, LLP, 199 Main Street, Suite 400, White Plains, NY 10601 For respondent Tawanna Porter: Barbara N. Reilly, Esq., Legal Services of the Hudson Valley, White Plains, NY 10601 Resena Porter, Respondent pro se, White Plains, NY 10603
Attorneys for the Petitioner, Mark A. Guterman, Esq., Lehrman, Lehrman & Guterman, LLP, 199 Main Street, Suite 400, White Plains, NY 10601
For respondent Tawanna Porter: Barbara N. Reilly, Esq., Legal Services of the Hudson Valley, White Plains, NY 10601
Resena Porter, Respondent pro se, White Plains, NY 10603
Bonnie L. Orden, J. Petitioner moves to lift the stay currently imposed on the instant non-payment summary proceeding pursuant to the New York Emergency Rental Assistance Program of 2021 (ERAP) with respect to arrears that cannot be covered by the program (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, as amended by L 2021, ch 417, § 2, part A). Respondent, Tawanna Porter, (hereinafter T. Porter), by counsel, opposes, claiming that the stay must remain in its entirety pending a determination of the household's eligibility for rental assistance by the requisite authorities. Pro se Respondent, Resena Porter, (hereinafter R. Porter), has not opposed. Pursuant to CPLR § 2219, this Court reviewed the Petition and exhibits; the Amended Petition; Petitioner's Notice of Motion, Affirmation, and exhibits; Respondent T. Porter's Affirmation in Opposition; Petitioner's Reply Affirmation; and Petitioner's Supplemental Reply Affirmation. For the reasons set forth below, Petitioner's motion is granted.
Factual Background
Petitioner commenced this non-payment summary proceeding to recover possession of an apartment unit and for a monetary judgment for rent arrears from two Section 8 co-tenants, (sisters), commenced against T. Porter by Notice of Petition, dated January 28, 2021, and against R. Porter by Amended Notice of Petition, dated October 6, 2022.
On September 10, 2021, respondent, T. Porter, by counsel, informed the Court that she filed an application for rental assistance for the household (both T. Porter and R. Porter) through ERAP, at which time this proceeding was stayed pending a determination of the household's eligibility for relief, pursuant to ERAP § 8. Pro se respondent, R. Porter, was subsequently added as an additional respondent since she is co-tenant of the subject premises.
As of January 17, 2023, respondents owe a total of $18,573 in arrears. These arrears stem from thirty-five (35) months of unpaid rent, from March 1, 2020, to January 1, 2023. In general, ERAP provides eligible renters with payment for up to fifteen (15) months of rent arrears (ERAP § 9, providing payments for twelve [12] months of arrears and potentially three [3] months of prospective rent). Assuming, as petitioner does, that respondents will be eligible for the maximum amount contemplated by the program, only fifteen (15) months of arrears will be paid, at a total of $9,893, leaving petitioner with a minimum deficit of $8,680, of twenty (20) months’ arrears, if/when ERAP determines whether respondents are eligible and makes payment on their behalf. Notably, the law sunsets in 2025, and as such, petitioner may have to wait years to find out whether respondents, as Section 8 tenants, will be approved in whole, in part, or not at all. With no appellate guidance to date, what sets this case apart from most if not all other cases where courts of concurrent jurisdiction have lifted the ERAP stay, is that: 1) no determination has yet been made by ERAP; 2) petitioner is not waiving his right to receive the funds if granted, and; 3) petitioner assumes for purposes of lifting the ERAP stay that it will be paid the maximum amount allowed for a full fifteen (15) months.
The uncovered arrears exclude the months of February and March 2023, while the motion was under consideration by this Court.
While not raised by petitioner, the court notes that under the benefits section of https://otda.ny.gov/programs/emergency-rental-assistance/#benefits [last accessed March 15, 2023], it provides that "[h]ouseholds approved for ERAP may receive up to 12 months of rental arrears payments for rents accrued on or after March 13, 2020" and "[u]p to 3 months of additional rental assistance if the household is expected to spend 30 percent or more of their gross monthly income to pay for rent" (emphasis added). Section 8 tenants’ rent is limited to no more than 30 percent of their income (see https://otda.ny.gov/programs/emergency-rental-assistance/faq.asp#faq-benefits-q20) [last accessed March 15, 2023]).
The ERAP website provides in a March 2, 2023 "important update" for ERAP applicants: "IMPORTANT NOTE: Applications from subsidized housing tenants whose rent is limited to a certain percentage of income (including public housing, section 8, and FHEPS) are not currently able to be paid. Therefore, at this time, none of the subsidized housing applications can be paid regardless of the date their application was submitted. Residents of public housing are urged to contact their public housing authority to determine if their rent can be adjusted retroactively based on a previous change in circumstances, including a reduction in income" (https://otda.ny.gov/programs/emergency-rental-assistance/#overview) [last accessed March 15, 2023]).
With that as a backdrop, petitioner now moves this Court to lift the stay with respect to the twenty (20) months’ arrears that will not be covered by ERAP. For the sake of argument, since petitioner assumes that it will receive the maximum payment permitted, it excludes the fifteen (15) months of the highest possible rent (rent due has fluctuated) from its request but argues that the stay must be lifted on arrears for which ERAP will never pay regardless of the ERAP determination.
Analysis
Petitioner argues that the Court must lift the stay, because to do otherwise would call into question ERAP's constitutionality, claiming that the statute would violate petitioner's rights under the Due Process Clause of the United States Constitution ( Chrysafis v. Marks , ––– U.S. ––––, 141 S. Ct. 2482, 210 L.Ed.2d 1006 [2021]. Yet, as noted in Fantis Foods, Inc. v. Std. Importing Co., Inc. , 49 N.Y.2d 317, 327, 425 N.Y.S.2d 783, 402 N.E.2d 122 (1980), "[A] statute is to be construed so as to avoid grave doubts concerning its constitutionality"; see also McKinney's Cons Laws of NY, Book 1, Statutes, § 150, (hereinafter "NY Stat"). Respondent T. Porter contends that the plain language of the ERAP statute requires a stay of the entire proceeding, regardless of whether ERAP will pay all, none, or any part of respondents’ covered arrears.
It is well settled that "courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional" ( Overstock.com, Inc. v. NYS Dept. of Taxation and Finance , 20 N.Y.3d 586, 593, 965 N.Y.S.2d 61, 987 N.E.2d 621 [2013], quoting LaValle v. Hayden , 98 N.Y.2d 155, 161, 746 N.Y.S.2d 125, 773 N.E.2d 490 [2002] ; see also People v. Viviani , 36 N.Y.3d 564, 145 N.Y.S.3d 512, 169 N.E.3d 224 [2021] ). Therefore, before addressing petitioner's constitutional argument, the Court must first determine, using the time-honored principles of judicial construction, whether the ERAP statute itself mandates a stay with respect to arrears above and beyond the fifteen (15) months the program's assistance was intended to satisfy (compare Barton v Bixler , 2022 NY Misc LEXIS 1090). "The primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the Legislature" ( NY Stat § 92 ; People v. Galindo , 38 N.Y.3d 199, 203, 171 N.Y.S.3d 865, 191 N.E.3d 1136 [2022], quoting Riley v. County of Broome , 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000] [internal quotations and citations omitted]). Statutes, regulations and the like must be analyzed in such a way, if possible, that assumes its constitutionality and "the saving construction must be one which the court ‘may reasonably find implicit’ in the words used by the legislature" ( People v. Dietze , 75 N.Y.2d 47, 53, 550 N.Y.S.2d 595, 549 N.E.2d 1166 [1989] [internal citations omitted]). Furthermore, "[a] statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent" ( NY Stat § 97 ). The Court must also avoid an interpretation that would render a portion of the statute superfluous ( Galindo , 38 N.Y.3d at 205, 171 N.Y.S.3d 865, 191 N.E.3d 1136 ). Finally, when the plain language of a statute is ambiguous, extrinsic evidence of legislative intent may be considered in its interpretation ( NY Stat § 120 ).
Section 8 of ERAP states, in pertinent part:
(1) [E]viction proceedings for ... non-payment of rent or utilities that would be eligible for coverage under this program shall not be commenced against a household who has applied for this program or any local program administering federal emergency rental assistance program funds unless or until a determination of ineligibility is made ....
(2) [I]n any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner , all proceedings shall be stayed pending a determination of eligibility (emphasis added).
The first provision noted above prevents certain summary proceedings from being commenced, and the second provision provides for a stay for actions already commenced. A plain reading of the first provision prohibits the commencement of non-payment proceedings for rent "that would be eligible for coverage" under ERAP, if the renter has applied for ERAP relief. Section 9 of ERAP explains that a maximum of fifteen (15) months of arrears are eligible for coverage. Therefore, when read together, the statute prohibits the commencement of non-payment proceedings against a renter who has applied for ERAP and has fifteen (15) months or less of arrears.
The second provision, as referred to above, is more ambiguous. Respondent T. Porter argues that this provision mandates a stay of any pending non-payment proceeding against a renter who has applied for benefits that "cover all or part of the arrears" (emphasis added) until a determination of eligibility has been made (ERAP § 8). Interpreting this sentence to mandate a stay of every non-payment proceedings regarding any or all arrears, ( not just "the" covered arrears), regardless of when they accrued or whether covered by ERAP, ignores the phrase regarding the tenants’ application for benefits "under this program " and would lead to an absurd result: an action could be commenced against a renter who has applied for ERAP while having more than fifteen (15) months of arrears, but that action would be immediately stayed for an indefinite period of time. Respondent T. Porter's interpretation of the second provision would thus make the first provision frivolous and superfluous, in violation of the tenets of statutory construction detailed above, because it would make it futile to bring an action that would be immediately stayed.
A fairer reading of the second provision is that it stays all pending proceedings that concern arrears due during the covered period, (or benefits that might be paid under other applicable programs), after a tenant applies for rental assistance. The phrase "any local program administering federal emergency rental assistance program funds to cover all or part of the arrears" is a descriptor; it explains that the stay may apply to programs beyond ERAP, but it does not expand the scope of ERAP coverage. Thus, this Court does not read the statute as mandating a stay for every proceeding in which there is an ERAP application filed, without consideration of when rent arrears first accrued or when non-payment rent obligations (outside the coverage period) continue to accrue with no end in sight. Rather, this Court interprets the plain language of ERAP § 8 to stay any pending proceeding eligible for benefits under this program, or any local, state, or federal rental assistance program.
To date and without dispute, tenants have not applied to any other agency for rental assistance other than ERAP.
In short, if a pending summary non-payment proceeding relates to arrears not eligible for coverage, the stay does not apply. A reading of the NY State Senate's Memorandum in Support of the most recent amendment to the ERAP statute supports this Court's interpretation. The memorandum states: "after applying for emergency rental assistance, a household cannot be evicted ... for non-payment of rent or utilities eligible for coverage under the program until such time as the household is determined to be ineligible to receive emergency rental assistance" (Senate Mem in Support, Bill Jacket, L 2021, ch 417 [emphasis added]). The drafters’ intent was only to provide a stay of evictions for occupants eligible for coverage. The legislative intent being clear, and any ambiguity having been resolved, there is no need to delve into the constitutionality of an alternative interpretation (see e.g., People v. Viviani , 36 N.Y.3d 564, 588, 145 N.Y.S.3d 512, 169 N.E.3d 224 [2021] concurring op. of Rivera, J. ["Indeed, if the plain statutory text itself supplied the constitutional construction, there [is] no need to invoke the canon of constitutional avoidance in the first place."])
In addition, this case is distinguishable from those cited by respondent T. Porter. In Mason v. Doe , 75 Misc. 3d 1210 [A], 2022 WL 1763746 (Civ. Ct. Kings Co 2022), the primary issues were whether the ERAP application was made in bad faith and whether there were sufficient ERAP funds for payment. In the pending case, petitioner does not contest the validity of the ERAP application and even assumes it will receive payment—instead, petitioner avers that it cannot be made whole by ERAP payments, even if provided in full. In Yonkers 2012 Assoc. LLC v AnnMarie Heslop (Decision and Order of Medina, J., Index No. LT-0445-20 [Yonkers City Ct 2022]), the court, a court of concurrent jurisdiction, erroneously relies on a non-binding administrative order in making its decision; as such, this case is not persuasive. And finally, in EG Mt Vernon Preservation LP v. Roberts , 2023 N.Y. Slip Op. 50025[U], 2023 WL 164638 (Mt. Vernon City Ct. 2023), the petition states that an ERAP stay should be lifted because an ERAP application for a Section 8 tenant is futile, as the government is unlikely to pay the rent relief—an issue that has no bearing whatsoever on the instant proceeding because petitioner, herein, assumes for the sake of argument that it will receive full payment for the covered period. Ultimately, respondent ignores the final decision by the Mount Vernon Court ( id. ) as described below.
In this case, the respondents have at least 20 months of rental arrears that are ineligible for coverage under ERAP. Furthermore, even after being advised in the Notice to Tenant, served on respondents, that they still owe any unpaid rent to their landlord, and the New York Office of Temporary and Disability Assistance explains in the Frequently Asked Questions Section on their website that tenants remain responsible for paying their rent, (Office of Temporary and Disability Assistance, Frequently Asked Questions , available at https://otda.ny.gov/programs/emergency-rental-assistance/faq.asp [last accessed Mar. 14, 2023]), this court reasons that such warnings are a clear indication that ERAP funds, along with the concomitant stay provisions, will only be paid for a maximum of 15 months.
The stay is, therefore, inapplicable to those months in excess of the fifteen (15) covered by ERAP (see EG Mt Vernon Preservation LP v. Duncan , 77 Misc. 3d 1226[A], 2023 WL 310299 [Mt. Vernon City Ct. 2023] ; also see Decision and Order of Kagan, J., Docket No. 22080236 [Town of Pelham Justice Court 2023]); see generally CPM Tudor Village, LLC v. Atkinson , 77 Misc.3d 1214(A), 178 N.Y.S.3d 430 [Suffolk County Dist. Ct. 2022] ["any stay arising out of the ERAP program is limited to 15 months and that failure to pay rent after 15 months, even while awaiting an ERAP decision, is grounds to issue a warrant of eviction]. See generally Kristiansen v. Serating , 75 Misc. 3d 331, 165 N.Y.S.3d 828, [Suffolk County Dist. Ct. 2022]." As such, the stay is lifted and petitioner may proceed in its eviction and non-payment proceeding with respect to all arrears that will not be covered by ERAP, which excludes arrears from April 2020 to June 2021, for which months the stay will remain in effect.
The respondents have failed to any current rent and there has been no statement provided throughout the pendency of this matter that failure to pay rent was or is related to the COVID pandemic.
Therefore, it is
ORDERED and DECIDED that the stay is hereby vacated as it relates to arrears both before and after the fifteen (15) months potentially covered by ERAP.