Kimon C. Thermos, J.

Appearing for the Petitioner: David Scott Harris, Esq., Extreme Attorney Services Inc.

Appearing for the Respondent: Christopher K. Lee, Esq., Queens Legal Services

Kimon C. Thermos, J. The Decision/Order on this Motion is as follows:

Petitioner commenced this month-to-month holdover proceeding in June 2022. Prior to commencing this proceeding, Petitioner served Respondent with a ninety (90) notice terminating the month-to-month tenancy. Respondent appeared and notified the court of a pending ERAP application. The case was placed on the court's administrative calendar pending a determination of Respondent's eligibility for ERAP. Petitioner filed an Order to Show Cause ("OSC") seeking to vacate the ERAP stay and restore the case to the calendar. Respondent appeared by counsel and filed written opposition to the OSC. By Order dated April 5, 2023, this court granted Petitioner's OSC to the extent of: 1) vacating the ERAP stay; 2) restoring the case to the calendar; and 3) determining that Petitioner has waived its claims to twelve (12) months of rent arrears based on the provisions of the ERAP statute; and 4) ordering Respondent to file an answer within fourteen (14) days. Respondent filed a written answer as ordered, but also subsequently filed a motion to renew and reargue this court's April 5, 2023 Order. CPLR 2221(f) provides that:

a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

Respondent clearly labeled its motion a motion to both renew and reargue and made separate arguments in support of both. The court will address renewal and reargument separately as required by CPLR 2221(f).

Motion to Reargue

Respondent's motion seeks to reargue this court's April 5, 2023 Order. CPLR 2221(d) provides that:

A Motion for leave to reargue: 1. Shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.

Petitioner has not raised any procedural issues regarding Respondent's motion to reargue and the Court does not perceive any procedural defects. The determination of whether to grant leave to reargue lies within the sound discretion of the court. Ahmed v. Pannone , 116 A.D.3d 802, 984 N.Y.S.2d 104 (2nd Dept. 2014). This court's April 5, 2023 Order was a short order that did not go into much detail regarding the court's decision to lift the stay. As such, Respondent's motion for leave to reargue is granted.

In the April 5, 2023 Order, this Court granted Petitioner's request to lift the ERAP stay because Petitioner had provided proof that Petitioner notified OTDA of its intention not to participate in the ERAP program. Section 9(2)(b) of the ERAP statute provides for an outreach process that OTDA must follow prior to making an eligibility determination. L2021, Ch 56, § 1, Part BB, Subpart A, Section 9(b)(2) as amended by L2021, ch 417, § 2, Part A. Section 9(2)(b) states in relevant part: "Such outreach may be considered complete if: (iii) a landlord or utility provider confirms in writing that the landlord or utility provider does not wish to participate." Id. Section 8 provides that if "eviction proceedings are commenced against a household who subsequently applies for benefits under this program, all proceedings shall be stayed pending a determination of eligibility." If a landlord provides OTDA with written notice that it does not intend to participate in the program, that ends the outreach process according to the statute. At that point, logically, the determination of eligibility is a moot point and there is no reason for the stay to continue.

Respondent argues in its motion to reargue that the analysis above ignores the plain language of the statute that provides that the stay remains in effect until OTDA makes a final determination of eligibility. Respondent cites four trial court decisions in support of this position . In First Hous. Co., Inc. v. Tchiremu , the petitioner sought to lift the ERAP stay because the respondent was a co-operative shareholder and thus not eligible for ERAP. 78 Misc.3d 1219(A), 2023 WL 2779060 (Civ. Ct., Qns. Cty, 2023). Judge Guthrie denied the motion on the grounds that the statute gives the OTDA Commissioner responsibility for establishing eligibility standards.

In Savy Properties 26 Corp. v. James , Judge Weisberg denied petitioner's motion to lift the ERAP stay noting that "the court is not empowered to make determinations as to eligibility." 76 Misc.3 1214(A), 2022 WL 4491195 (Civ. Ct., Kings Cty. 2022).

In Elliot Place Props. Inc. v. Jaquez , the petitioner sought to lift the ERAP stay because: 1) respondent was a NYCHA Section 8 tenant; 2) the ERAP statute provides that subsidized tenants are only eligible for assistance once all other claims are paid; and 3) the ERAP application had been pending for eighteen (18) months. 77 Misc.3d 1230(A), 2023 WL 1153902 (Civ. Ct., Bronx Cty. 2023). Judge Shahid denied the motion on the grounds that the ERAP statute did not provide an exception to the stay for subsidized tenants even if they were considered lower priority. In Harbor Tech LLC v. Correa , 73 Misc.3d 1211(A), 2021 WL 4945158 (Civ. Ct., Kings Cty. 2021), the petitioner sought to lift the ERAP stay based on the due process issues that the United States Supreme Court addressed in Chrysafis v. Marks , ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006 (2021). Judge Stoller denied the motion determining that the due process concerns regarding the hardship stay created by CEEFPA raised by Chrysafis do not apply to the stay created by the ERAP statute.

Respondent also cites for comparison one trial level case where the court declined to lift the ERAP stay but acknowledged the court's power to do so under appropriate circumstances. In Mason v. Reyes , Judge Cohen acknowledged that the statute clearly indicates that a pending ERAP application stays proceedings until an eligibility determination is made. 75 Misc.3d 1210(A), 2022 WL 1763746 (Civ. Ct., Kings Cty. 2022). However, the Court also noted that the court "has inherent authority to determine eligibility for purposes of the stay, and any concerns when facts indicate a lack of fairness, credibility or bad faith." Id. at 2. Judge Cohen went on to add that "the court has inherent power, and indeed responsibility, to the administration of justice, to control their calendars and to supervise the course of litigation before them." Id. at 3. The Court ultimately decided that the tenant was likely eligible for ERAP and declined to lift the stay until OTDA made a determination of eligibility but cited a number of trial court cases where the court did lift the ERAP stay. See Abuelafiya v. Orena , 73 Misc.3d 576, 155 N.Y.S.3d 715 (Dist. Ct. 3rd Dist. Suffolk, Co. 2021) (stay lifted where court found that tenant was ineligible for ERAP because the tenant was not experiencing housing instability); 2986 Briggs v. Evans , 2022 N.Y. Slip Op. 50215(U), 2022 WL 853132 (Civ. Ct., Bronx Cty. 2022) (stay lifted where respondent was found to be a licensee who is not obligated to pay rent and thus not eligible for ERAP); Kelly v. Doe , 2022 N.Y. Slip. Op. 22077, 75 Misc. 3d 197, 166 N.Y.S.3d 481 (Civ. Ct., Kings Cty. 2022) (stay lifted where respondents were found to be squatters and thus not eligible for ERAP). This same reasoning was applied again by Judge Cohen in a later decision where the stay was lifted in a case where respondent had already consented to a judgment of possession in a holdover case severing the landlord/tenant relationship and thus respondent was not eligible for ERAP. Joute v. Hinds , 75 Misc.3d 764, 170 N.Y.S.3d 827 (Civ. Ct., Kings Cty. 2022). Petitioner cites Judge Scheckowitz's decision in Papandrea-Zavaglia v. Arroyave , 75 Misc.3d 541, 168 N.Y.S.3d 789 (Civ. Ct., Kings Cty. 2022) in support of its position that this court has the power to lift the stay. In Arroyave , Judge Scheckowitz reviewed the trial court cases that have decided to vacate an ERAP stay and laid out criteria for determining whether vacature is appropriate; "the regulatory status of the premises, the nature of the cause of action, the relationship between the applicant and the landlord, does the applicant meet the basic criterion for assistance outlined in the statute, and whether the equities favor the landlord." Id. at 544, 168 N.Y.S.3d 789.

There is no dispute that the filing of an ERAP application triggers the ERAP statute's stay of any pending eviction proceedings. However, the cases cited above disagree as to whether trial courts have the power to lift the stay where the court determines that the tenant would be ineligible for ERAP under § 5 of the statute. Some courts have held that the clear language of the statute only gives OTDA the authority to determine eligibility and the courts have no role in the process other than lifting the stay once a determination is made. See e.g. Tchimeru, Supra . Other trial courts have held that courts have the inherent power to lift stays under appropriate circumstances. See e.g. Mason, supra . The only appellate decision extant at the time of the Court's April 5 2023 Order on the issue was issued by the Appellate Term, 1st Department. Bank of New York Trust Company, N.A. v. Courtney , 78 Misc.3d 27, 188 N.Y.S.3d 356 (App. Term, 1st Dept. 2023). In Courtney , the Appellate Term affirmed the trial court's decision to grant a motion to lift the ERAP stay where the respondent was a former owner in a post-foreclosure holdover, had no obligation to pay rent, and thus was not eligible for ERAP.

Ultimately, whether the court has the authority to determine eligibility under the ERAP statute is irrelevant to the decision made in this court's April 5, 2023 Order. As mentioned above, § 9(2)(b) of the ERAP statute directs OTDA to perform outreach to the landlord prior to reviewing the applicant's eligibility. One of the ways that outreach can end according to § 9(2)(b) is if the landlord "confirms in writing that the landlord does not wish to participate." If OTDA cannot reach the landlord or the landlord does not respond, § 9(2)(c) provides that funds in the amount approved shall be available for 180 days. The statute does not however explicitly address what OTDA should do when outreach ends with the landlord notifying OTDA in writing of its intention not to participate in the program. The only logical conclusion that the court can come to in interpreting the statute is that once a landlord informs OTDA in writing that they will not accept the money there is nothing left for OTDA to do except to close the case and redirect the funds to another applicant whose landlord is willing to accept the funds. This interpretation is supported by the legislature's decision to provide that OTDA complete outreach prior to determining eligibility. There would be no point to doing outreach first if the result in a case where the landlord elected not to participate did not result in OTDA denying the application as moving onto determine eligibility would be a futile gesture.

Respondent argues that § 9(2)(b) only says that "Such outreach may be considered complete if" relying on the word "may" in that clause to suggest that if a landlord notifies OTDA in writing that it does not wish to participate then OTDA has the option to consider outreach complete. The court fails to see how this could be interpreted as an option for OTDA. If the landlord provides written notification that it will not participate even if the tenant is eligible, what other outreach could OTDA possibly do? What would be the point of moving on to determine eligibility? Respondent also argues that even if written notification ends the outreach process it does not constitute an eligibility determination that would allow for lifting of the stay. As noted by Judge Scheckowitz in Arroyave , "the court must avoid an unreasonable application of a law when interpreting a statute." Arroyave, Supra at 546, 168 N.Y.S.3d 789 (citing People v. Schneider , 37 N.Y.3d 187, 196, 151 N.Y.S.3d 1, 173 N.E.3d 61 (2021). The ERAP statute clearly provides the landlord an option to not participate and even provides a remedy to the tenant if the landlord chooses to decline participation by granting to the tenant a waiver of the rent sought in the ERAP application. Petitioner even acknowledged that by declining to participate in the ERAP program he would be waiving the right to collect any money he might have received from the ERAP program. Based on this acknowledgement by Petitioner and the provisions of the statute, this Court's April 5, 2023 Order confirmed the waiver of twelve months of rent (the maximum Respondent could have received from ERAP).

There is no way to logically reconcile that the landlord can decline to participate but that such declination does not end OTDA's inquiry (and thus the stay). To hold that the stay remains in effect under these circumstances would transform the purpose of the stay from one to facilitate eligibility determination to a stay with no purpose other than to stall the pending proceeding which would be patently unfair to Petitioner and should not be condoned.

Upon reargument, the court has reviewed the statute and the relevant cases issued at the time of the April 5, 2023 Order, but for the reasons cited above adheres to its original decision.

Motion to Renew

Pursuant to CPLR 2221(e), a motion for leave to renew:

1. Shall be identified specifically as such;

2. Shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. Shall contain reasonable justification for the failure to present such facts on the prior motion.

Petitioner has not raised any procedural defects regarding Respondent's motion to renew and the Court does not perceive any such defects. The motion was clearly labeled as a motion to renew as required by CPLR 2221(e)(1). Respondent's Memorandum of Law in support of the motion cites two Appellate Term cases that were decided after this court's April 5, 2023 Order. Respondent alleges that these cases provide guidance regarding whether and when the court can lift an ERAP stay and thus represent a change in the law requiring renewal. Respondent's motion to renew is granted.

The first Appellate Term case cited by Respondent is Youngstar Irrevocable Trust v. Paetz . The Appellate Term, 2nd Department, 9th and 10th Judicial Districts issued this decision on May 11, 2023. 78 Misc.3d 135(A), 2023 WL 3445706 (App. Term, 2nd Dept. 2023). In Paetz , the respondent filed an ERAP application in August 2021 and the petitioner filed a holdover proceeding in March 2022. The trial court granted respondent's motion to dismiss the proceeding because the petitioner had violated Section 8 of the ERAP statute which provides that "proceedings for a holdover or expired lease, or 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 unless or until a determination of ineligibility is made." L 2021, ch 56 § 1, part BB, § 1, subpart A, sec 1, § 8 as amended by L2021, ch 417, § 2, Part A, § 4.

Paetz is factually distinct from the instant case for several reasons. First, this case was already pending when the ERAP application was made compared to Paetz where the ERAP application predated the holdover filing. This is relevant because the statute provides for different results depending on whether the ERAP application came before or after the filing of the eviction proceeding. When the ERAP application comes first, landlords are barred from commencing an eviction case based on the clear language of § 8. When the ERAP application comes after a case is filed, the statute instead provides that the case shall be stayed "pending eligibility." In the former situation, the court cannot hear the case because the landlord was barred by the statute from even bringing the case while the ERAP application was pending. In the latter situation, the case is properly commenced and the court's inherent stay powers allow the court to determine whether lifting the stay is appropriate given the circumstances. Second, in Paetz the landlord told the court that it did not want to participate in the ERAP program but there was no indication that the landlord notified OTDA in writing. This is relevant because, as discussed above, the statute provides in § 9(2)(b) that outreach precedes the eligibility determination, and that outreach ends if the landlord provides written notice that it does not wish to participate in the program.

The second new Appellate Term 2nd Department case cited by Respondent is Avalonbay Communities, Inc. v. Dukes. 78 Misc.3d 134(A), 2023 WL 3445705 ( App. Term, 2nd Dept. 2023). This case was decided on April 20, 2023 which was also after this court's April 5, 2023 Order. In Dukes , the landlord commenced a non-payment case. The trial court granted a default judgment when the tenant failed to appear. The tenant moved to vacate the default. The trial court found that there was excusable default given that the tenant had COVID on the prior court date and landlord had incorrectly told her that she did not need to appear. However, the court denied the motion to vacate the default based on the tenant's failure to establish a meritorious defense. The tenant argued that ERAP funds already paid satisfied the petition, but the trial court held that there was a six-month period of rent sought in the petition that was not covered by the ERAP payment. The tenant also sought a stay of the non-payment proceeding because she had filed a second ERAP application that was still pending. The trial court denied tenant's motion to vacate the default judgment or grant a stay. The Appellate Term affirmed the trial court's decision, but stated that, based on the tenant's second ERAP application, "a stay was already in effect by operation of law, which stay will only expire upon the Office of Temporary and Disability Assistance's determination of the ERAP application." Id. Respondent cites this case for the proposition that "trial courts may not exercise own judgment, no matter how just and equitable, in place of the OTDA. " The facts before the Appellate Term were significantly distinct from those in the instant case. Dukes was a non-payment case where: 1) the landlord had already agreed to participate in the ERAP program; 2) the tenant had already been found eligible for ERAP based on the first ERAP applications; 3) OTDA had already made payment to landlord of twelve months of rent arrears; and 4) tenant had applied for ERAP a second time in order to see if she could get the additional three month's of funds that the statute allows. None of these facts are consistent with the instant case.

The Appellate Term 2nd Department has issued a third decision regarding an ERAP issue since this court's April 5, 2023 Order. Respondent does not refer to this case in its motion to renew, but the court will briefly address it. In Ami v. Ronen , the Appellate Term Second Department 2nd, 11th and 13th Judicial Districts reversed a trial court decision lifting an ERAP stay. 79 Misc.3d 14, 191 N.Y.S.3d 569 (App. Term, 2nd Dept, 2nd, 11th and 13th Jud. Dists. 2023). In Ami , landlord filed a holdover case. The tenant subsequently filed an ERAP application. The landlord filed a motion to lift the ERAP stay on the grounds that the subject building contained less than four units and landlord wanted possession so that the subject premises could be occupied by his wife. The trial court granted the landlord's motion to lift the stay. The Appellate Term reversed the trial court holding that under the ERAP statute "owner's use" was only an exception to the requirement in Section 9(2)(d) that a landlord not evict for twelve months after receiving ERAP funds and was not an exception to the lifting of the stay. Id. While the decision in Ami can be read along with Paetz and Dukes for the proposition that only OTDA can determine eligibility under the ERAP statute and the stay is in effect until OTDA makes such determination, these three cases present very different factual circumstances from the instant case. The key distinction is that none of these three cases address the section of the ERAP statute that deals with OTDA's outreach process. The statute clearly provides that landlords have the option to decline participation in the ERAP program. OTDA is instructed by the statute to start the outreach process to determine if the landlord will participate before making an eligibility determination. Section 9(2)(b) clearly states that outreach ends when the landlord notifies OTDA in writing that it does not wish to participate in the program. At this point, there is no reason for OTDA to conduct an eligibility determination as outreach has already determined that the landlord will not accept the funds. This benefits the landlord as the stay is lifted and it can proceed with its eviction case. This also benefits the tenant because they get the benefit of the waiver of the arrears despite OTDA not even confirming that the tenant was even eligible for such funds. This also benefits OTDA and other applicants as OTDA can move on to other applications where a tenancy may be preserved by the payment of these funds without having to waste 180 days of wait time. To interpret the statute otherwise would produce an absurd result and one not intended by the legislature. Courts have repeatedly rejected statutory constructions that produce unreasonable or absurd applications of the law. People v. Schneider , 37 N.Y.3d at 198, 151 N.Y.S.3d 1, 173 N.E.3d 61 (2021) ; People v. Garson , 6 N.Y.3d 604, 614, 815 N.Y.S.2d 887, 848 N.E.2d 1264 (2006) ; Long v. State of New York , 7 N.Y.3d 269, 819 N.Y.S.2d 679, 852 N.E.2d 1150 (2006) ; NY State Ass'n of Crim. Def. Lawyers v. Kaye , 96 N.Y.2d 512, 730 N.Y.S.2d 477, 755 N.E.2d 837 (2001).

Based on the above, the court finds that the new cases issued by the Appellate Term since its April 5, 2023 Order do not represent a change in the law with regard to the outreach process under Section 9(2)(b) of the ERAP statute. As such, after renewal the court adheres to its original decision.

Conclusion

Respondent's motion is granted to the extent of granting leave to renew and reargue. Upon both renewal and reargument, the Court adheres to its original decision.

This constitutes the decision and order of the court.