Opinion
LT-19-123 LT-20-013
01-14-2021
Anthony and Jeryl Piscionere, Petitioners (Landlords) v. Kenneth Gori and Mildred Gori John Doe, Jane Doe, and any other subtenants 365 Boston Post Road, Rye, New York 10580 Respondents (Tenants).
To: Anthony Piscionere, Esq. 363 Boston Post Road Rye, New York 10580 Steven Feinstein, Esq. Feinstein & Naishtut, LLP 211 South Ridge Street Rye Brook, New York 10573 Attorneys for Landlords Bruce Minkoff Robinowitz Cohlan Dubow & Doherty LLP 199 Main Street, Suite 500 White Plains, New York 10601 Attorney for Tenants
Following the landlords' filing of a petition in December, 2019 to obtain possession of real property, a non-jury trial of this summary proceeding was held in City Court, City of Rye. The trial commenced on August 21, 2020 and concluded on November 4, 2020. On December 11, 2020, this Court rendered its written decision. The facts and proceedings therein are set forth in the Decision and Order dated December 11, 2020 and incorporated herein. The Order granted, inter alia, the landlord's petition for a warrant of eviction, staying its execution by operation of The Tenant Safe Harbor Act until January 1, 2021.
On or about December 22 or 23rd, 2020, the warrant of eviction was served upon the tenants with notice that the warrant would be executed by the City Marshal on January 20, 2021.
On December 28, 2020, the "Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020" became effective, hereinafter referred to as the "Act."
Section 8 (a) (i) of the Act states that "in any eviction proceeding in which an eviction warrant has been issued prior to the effective date of this act, but has not yet been executed as of the effective date of this act, including eviction proceedings filed on or before March 7, 2020, the court shall stay the execution of the warrant at least until the court has held a status conference with the parties."
To begin, in determining the applicability of this new law to the case at bar, it must first be determined whether the matter here is still pending even though the trial was completed and the judgment entered. A summary proceeding remains pending until execution of the warrant (see 203 E. 13th Street Corp. v Lechycky, 67 Misc2d 451 [App Term, 1st Dept 1971]). Accordingly, the Court finds that the proceeding here is still pending and thus the Act is applicable.
Next, the Court must determine whether this Act requires staying execution of the warrant until May 1, 2021. It is without question that the instant warrant was issued prior to the effective date of the Act and that it has not yet been executed. Therefore, the Act requires that the warrant's execution be stayed until "at least" the court holds a status conference with the parties. Here, a virtual status conference was held on January 8, 2021 with the parties and their attorneys present. At the conference, the tenants' attorney indicated that the tenants would be filing a hardship declaration.
On January 11, 2021, the tenants filed a hardship declaration, checking off both the "financial hardship" box and the "significant health risk" box. Subparagraph 8 (a)(ii) states in essence that if the tenant provides a hardship declaration, the execution of the warrant shall be stayed until at least May 1, 2021.
However, Section 11 of the Act provides a landlord with the chance to rebut a tenant's declaration of hardship, insofar as the tenant submits a financial hardship declaration. Per the statute, once the tenant selects the option indicating a financial hardship, a rebuttable presumption is created. On January 14, 2021, this Court held a virtual conference/hearing in which the landlords presented information to rebut, under Section 11, the tenants' claim to be experiencing a financial hardship. The Court then heard from the tenants' attorney who presented information and arguments in opposition to the landlord's information.
This Court hereby finds that the landlords have rebutted the presumption that the tenants are experiencing a financial hardship. The landlords provided reliable information that the tenants own a 4,000 square foot, multifamily home in New Rochelle, New York to which they could move or which could generate sufficient income to pay the rent at the subject premises. In addition, the landlords referenced an exhibit from trial which showed that in April of 2019, one tenant was earning over $19,000 per month in income. Next, the landlord referenced testimony at trial that the other tenant, who lost her job and is receiving unemployment insurance, nonetheless was provided in June of 2020 with separation compensation.
Citing a confidentiality agreement, at trial the tenant refused to disclose the amount provided by her prior employer. --------
Accordingly, this Court finds that the tenants are not experiencing a financial hardship entitling them to a stay of the eviction warrant under the "Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020." As for the tenants' claim that this Court is bound by the principle of res judicata, it is unavailing. The issue here is whether the Court should stay execution of a warrant of eviction under an entirely new law. As such, it is a separate transaction and issue preclusion is not applicable (see John P. v Whalen, 54 NY2d 89, 94 [1981]).
Nonetheless, while the Act provides the landlords with the opportunity to rebut a claim of financial hardship, it provides no such relief if the claim is based upon a significant health risk. Specifically, here, one of the tenants has filed with this Court a document in which she admits that she is submitting under the penalty of law (i.e. perjury), that she or a member of her household has "an increased risk for severe illness or death from COVID-19 due to ... having an underlying medical condition, which may include but is not limited to being immunocompromised."
This particular case unfortunately highlights a flaw in this new law which laudably seeks to help people truly in need of relief. Here, at trial, which was held in person during the months of the late summer and fall, the Court had the opportunity to observe the tenants during their testimony under oath. The Court found their testimony to be self-serving, evasive, and in conflict with the evidence of disinterested third parties, at times even in conflict with their own evidence. In short, the Court found them incredible. Now, under the strictures of this new law, the Court must accept their bald "hardship declaration" that moving would "pose a significant health risk" to the tenant or a member of the household because the Act does not allow the landlords an opportunity to rebut this facet of the tenants' claim. The result therefore is that these tenants are permitted to live in a home ostensibly rent free at least until May 1, 2021 even though it has been demonstrated to this Court that they own a large home in a neighboring city to which they could move and even though they have a significant income to live very comfortably and safely.
In conclusion, this Court is constrained under the provisions of the Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020 to stay until May 1, 2021, execution of the warrant of eviction issued on December 11, 2020. So Ordered. Dated: Rye, New York
January 14, 2021 /s/_________
Valerie A. Livingston
Rye City Court Judge Entered: /s/_________
Antionette Cipriano, Chief Clerk
21 McCullough Place
Rye, New York 10580 To: Anthony Piscionere, Esq.
363 Boston Post Road
Rye, New York 10580 Steven Feinstein, Esq.
Feinstein & Naishtut, LLP
211 South Ridge Street
Rye Brook, New York 10573 Attorneys for Landlords Bruce Minkoff
Robinowitz Cohlan Dubow & Doherty LLP
199 Main Street, Suite 500
White Plains, New York 10601 Attorney for Tenants