Summary
expanding the applicability of the moratorium based upon the legislature's amendment of hardship declaration to include "respondent" rather than "tenant"
Summary of this case from Windward Bora LLC v. CohenOpinion
Index No. L & T 57536/19
10-19-2021
OCEAN BAY RAD LLC, Petitioner, v. Gregory TOLLIVER, Respondents.
Slochowsky & Slochowsky, LLP, 26 Court Street, Suite 304, Brooklyn, New York 11242, jcannavo@ssrelaw.com, Attorneys for Petitioner — Ocean Bay Rad Queens Legal Services, Attn: Alex Jacobs, Esq., 89-00 Sutphin Boulevard, 5th Floor, Jamaica, New York 11435, ajacobs@lsnyc.org, Attorneys for Respondent — Gregory Tolliver
Slochowsky & Slochowsky, LLP, 26 Court Street, Suite 304, Brooklyn, New York 11242, jcannavo@ssrelaw.com, Attorneys for Petitioner — Ocean Bay Rad
Queens Legal Services, Attn: Alex Jacobs, Esq., 89-00 Sutphin Boulevard, 5th Floor, Jamaica, New York 11435, ajacobs@lsnyc.org, Attorneys for Respondent — Gregory Tolliver
Sergio Jimenez, J. The decision and order on petitioner's motion for permission to annul the stay set forth by the filing of a hardship declaration and for any other relief is as follows.
PROCEDURAL HISTORY
This holdover proceeding was commenced in April of 2019. Ocean Bay Rad, LLC (petitioner) seeks possession of the premises located at 51-49 Akmeda Avenue, Apartment 6E in Arverne, New York 11691 from Gregory Tolliver (respondent). The proceeding was resolved by stipulation on August 13, 2019 whereby respondent agreed to vacate the premises by a date certain. Respondent then sought extensions of time by orders to show cause. The last order to show cause overlapped with the pausing of most court functions due to the global pandemic health crisis. Eventually, the proceeding was put back on the calendar pursuant to a motion by petitioner seeking to enforce their judgment and warrant. Respondent was connected with counsel and a hardship declaration was filed. Petitioner's instant motion seeks to invoke Section 10 of L. 2021 Ch. 417 (CEEFPA as amended September 2, 2021) challenging the stay of the proceeding claiming that respondent may not avail themselves of its protections. On October 18, 2021 the court held argument after the motion had been fully briefed and reserved decision.
Argument
Petitioner asserts that respondent is an unauthorized occupant, in fact, they claim so on the caption itself, and that, as such, CEEFPA as amended does not afford this classification of respondent the protections that are afforded to tenants. Petitioner provides two similar lower court decisions to support their position: Kalikow Family Partnership, L.P. v. "John Doe" from Queens County Civil Court and Bibow v. Bibow from the District Court of New York, Third District, Suffolk County. Kalikow Family Partnership, L.P. v. "John Doe," 72 Misc. 3d 1172, 152 N.Y.S.3d 283 (Civ. Ct. Queens Co., 2021) ; Bibow v. Bibow , 72 Misc. 3d 1212(A), 150 N.Y.S.3d 232 (Suffolk Dis. Ct. 2021). Respondent opposes claiming that the law has changed but does not provide specifics as to how outside of a blanket statement claiming that the coverage has been expanded to include the respondent. Petitioner counters that the amount of time between the stipulated to vacate date and the present has divested respondent from being able to make claims about his relationship with the petitioner.
The current CEEFPA provisions states, in part, that the definition of a "tenant" includes a "residential tenant, lawful occupant of a dwelling unit, or any other person responsible for paying rent, use and occupancy, or any other financial obligation under a residential lease or tenancy agreement." (see Part C, Subpart A, § 3). The legislative intent of the act, and all of its precedent legislation, has been to be as expansive as possible — as is explicitly set forth in § 2 of L. 2021 Ch. 417. The Court of Appeals has repeatedly stated that the primary method of statutory interpretation deference courts should be the legislature's intent. DaimlerChrysler Corp v. Spitzer, 7 N.Y.3d 653, 827 N.Y.S.2d 88, 860 N.E.2d 705 (2006) ; Yatauro v. Mangano , 17 N.Y.3d 420, 931 N.Y.S.2d 36, 955 N.E.2d 343 (2011) ; Nostrom v. A.W. Chesterton Co. , 15 N.Y.3d 502, 914 N.Y.S.2d 725, 940 N.E.2d 551 (2010). The language of the statute itself is the starting point for discerning such intent. Roberts v. Tishman Speyer Props. , L.P., 13 N.Y.3d 270, 890 N.Y.S.2d 388, 918 N.E.2d 900 (2009). In this situation, the legislature itself stated that it was the intent of the legislation to "avoid as many evictions as possible for people experiencing a financial hardship" To such end, the statute must be interpreted by this court to carry out this end. Tzifil Realty Corp. v. Mazrekaj , 72 Misc. 3d 748, 150 N.Y.S.3d 865 (Civ. Ct. Kings Co., 2021).
The original stipulation created a responsibility for the respondent to pay ongoing use and occupancy should they not vacate in a timely fashion. The stipulation states in part "On condition surrender is made by 10/15/2019 all arrears and use + occupancy due through October 15, 2019 shall be waived." Further, Hon. Julie Poley ordered that use and occupancy be paid in the order dated November 6, 2019. As such, there is a responsibility to pay use and occupancy as petitioner points out in their papers that there has been a lack of payments but did concede use and occupancy was paid at some point after the stipulation was entered into. With this responsibility in place, respondent falls within the scope of "other person responsible for paying use and occupancy" definition set forth in the amended CEEFPA.
While the court agrees with the well-reasoned analysis of the Kalikow court, this court has the advantage of CEEFPA being amended once again in the intervening time between since that decision and this instant motion. Tellingly the September 2, 2021 amendment to the CEEFPA statute, while not changing the hardship declaration on its face, did change the word "tenant" to "respondent" in Section 4 and 6 when discussing when a hardship declaration is filed and its effect on certain types of cases. This deliberate change, read in conjunction with the legislature's stated intent to include as many people into the protections they created, leave the court no option but to apply the hardship declaration to this respondent. Petitioner's argument that the passage of time has removed respondent from the protected class in unavailing as the status has not changed. The HSTPA even walked back a trend to cut off the landlord-tenant relationship with the issuance of a warrant, as the legislature sought to maintain these relationships until the execution of the warrant.
Conclusion
For the reasons set forth above, petitioner's motion is denied without prejudice. This proceeding shall be moved to the administrative hardship declaration (HD) calendar for an expiration of the legislative stay.
This constitutes the decision and order of the court.