Opinion
1198-18
05-16-2022
Federal National Mortgage Association, Petitioner, v. Wallace Godette, LOIS GODETTE A/KA/ LOIS C. GODETTE A/K/A LOIS C. ADAMS, LISA GODETTE, ESTELLA RANDALL, "JOHN DOE" AND "JANE DOE" ALL ROOMS, UNIT #3 15 BEEKMAN AVENUE MOUNT VERNON, NEW YORK 10553, Respondents.
David A. Gallo, Esq. Attorney for Petitioner Earl M. Williams, Esq. Attorney for Respondent Lisa Godette
David A. Gallo, Esq. Attorney for Petitioner
Earl M. Williams, Esq. Attorney for Respondent Lisa Godette
Nichelle A. Johnson, J.
Petitioner commenced this post-foreclosure holdover proceeding in May 2018 seeking to recover the residential premises.
Petitioner now moves for issuance of a Warrant of Eviction.
Respondent Lisa Godette opposes the motion.
On May 14, 2019, Respondents Lois Godette and Lisa Godette entered into a Stipulation of Settlement wherein they agreed to vacate the premises by July 13, 2019. Respondents failed to vacate. A Warrant of Eviction issued on July 24, 2019. On September 3, 2019, respondents filed an Order to Show Cause seeking to vacate the warrant. On September 27, 2019, the court denied the Order to Show Cause and extended the stay on the execution of the warrant until November 8, 2019. On November 21, 2019, the Warrant of Eviction was re-issued. A stipulation of extension was filed thereby extending the Warrant of Eviction until December 23, 2019. Respondents filed an Order to Show Cause in Supreme Court seeking a stay of the Warrant of Eviction. By Decision and Order (J. Lefkowitz) dated January 10, 2020, the Order to Show Cause was denied.
The Petitioner states that due to the Covid-19 health crisis the eviction was not completed.
In opposition to the motion, Respondent Godette argues that there is a Supreme Court matter pending to determine the true owner of the property. Counsel, however, has not provided this court with any documentation to support this claim and significantly, has not provided any order from the court staying the landlord tenant proceeding while the "court matter is pending". Counsel further argues that the respondent has suffered a financial hardship during the Covid-19 period and has filed for ERAP assistance. Accordingly, the respondent argues that the Tenant Safe Harbor Act prohibits a court from issuing a warrant of eviction or judgment of possession against a residential tenant or lawful occupant that has suffered a financial hardship during the COVID-19 covered period.
Respondent has raised the affirmative defense of financial hardship under the Tenant Safe Harbor Act 2020. The law provides:
No court shall issue a warrant of eviction or judgment of possession against a residential tenant or other lawful occupant that has suffered a financial hardship during the COVID-19 period (emphasis added).
The legislation prohibits courts from evicting tenants who experienced financial hardship for nonpayment of rent that accrued or became due during the COVID-19 period, March 7, 2020, through January 15, 2022. Further, under the COVID-19 Emergency Rental Assistance Program (ERAP) (Part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c 417), tenants may apply for rental assistance to satisfy their rental arrears. Once a tenant files an application, an automatic stay is imposed on nonpayment and holdover evictions pending the approval/rejection of the ERAP application. Recently, however, "numerous courts of concurrent jurisdiction have ruled on whether the automatic stay imposed by the filing of an ERAP application can be lifted by the court, and, if so under what circumstances" (Papandrea-Zavaglia v Hernandez-Arroyaye, 2022 NY Slip Op 22109; 2022 NY Misc. LEXIS 1291 [Civ Ct. Kings Co. 2022]). When deciding whether to vacate the stay, courts have been looking at the regulatory status of the premises, the relationship between the parties, the nature of the cause of action, and whether the applicant meets the basic criteria for ERAP assistance (Id. citing Actie v Gregory, 2022 NY Slip Op 50117 (U), 74 Misc.3d 1213 (A) [Civ Ct Kings Co.].
In Kelly v Doe, 2022 NY Slip Op 22077 [Civ Ct. Kings Co. 2022], the trial court vacated an ERAP stay in a post-foreclosure holdover proceeding upon a finding that respondent was not a tenant or lawful occupant since respondent had no contractual obligation to pay rent to petitioner.
In Diamond Ridge Partners LLC v Hanspal, 73 Misc.3d 607 [Dist Ct. Nassau Co. 2021], the court held that none of the respondents, the mortgagor and others, qualified for protection under CEEFPA, either as a tenant or lawful occupant in a post foreclosure holdover proceeding. "A 'tenant' may be defined as 'one who holds or possesses [premises] by any kind of right or title... [or] who has the temporary use and occupation of real property owned by another person (called the landlord), the duration and terms of [the] tenancy being usually fixed by an instrument called a 'lease" (Id. citing Black's Law Dictionary, 11th Ed.). "Lawful occupant" has been described as a "component of the definition of tenant (Id. citing CIT Bank, NA v Schifffman, 36 N.Y.3d 550 [2021]). In making it's ruling the court found that the financial hardship protections could only be afforded to "a person responsible for paying rent... or any other financial obligation under a lease or tenancy agreement. Accordingly, the protections of the COVID Declaration would inhere to tenants, but not those who have no financial obligation, such as holdover tenants following a foreclosure, who at most could be considered occupants at "sufferance" if not outright squatters'" (Diamond Ridge Partners LLC v Hanspal, 73 Misc.3d 607, (citing Bibow v Bibow, LT-466-19, 2021, NYLJ LEXIS 765 [Dist Ct. Suffolk Co. July 28, 2021]
Further, other courts of concurrent jurisdiction have made findings that have resonated with this court on the problematic nature of ERAP's automatic stay. In Briggs LLS v. Evans, 2022 NY Slip Op 50215 (U) [Civ Ct. Bronx Co. 2022], the petitioner commenced a licensee eviction proceeding. The court granted petitioner's motion to lift the ERAP stay. The court discussed and concluded that it had the authority to vacate an ERAP stay and that it was appropriate to do so. The court opined that while the New York State Office of Temporary Disability Assistance (OTDA) has exclusive authority to establish eligibility standards, set priorities and process ERAP applications, the "Restrictions on eviction" section including the stay provision adheres to matters outside OTDA's realm. The court stated that these considerations regarding an eviction proceeding before a court do not involve any administrative agency.
In Hamilton Mills West, LLC v. Constantine, 2022 NY Misc. LEXIS 1504; 2022 NY Slip Op 22123 [City Ct. Cohoes 2022], the court held that due process requires that the petitioner is entitled to a hearing challenging ERAP's administrative rule mandating an automatic stay of an eviction proceeding after an application has been filed. The court indicated that a landlord may explore during that hearing whether the ERAP application was filed in bad faith. The court defined a bad faith filing as one where "there is no realistic possibility that the landlord will receive payment from OTDA" and therefore, the application is without a realistic possibility of receiving payments. The court further stated that such ERAP application is nothing more than a delay tactic to keep the landlord from exercising its constitutional right to possession and use of his property (Id. (citing Pokoik v. Slisdon 40 N.Y.2d 769, 773, 358 N.E.2d 874, 390 N.Y.S.2d 49 (1976). Significantly, the court also opined that the administrative order that imposes the ERAP stay by administrative command (AO/34/22), invades the role of the judiciary.
This court believes that a process whereby the tenant can "self-certify financial hardship" without any challenge, is not fair to landlords. This court opines that all applications for ERAP should be subject to judicial review when there is a good faith challenge by a petitioner, and where applicable, the court can either vacate the stay or hold a hearing to determine if a stay should remain in effect while the application is pending. Further, this court notes that under the current ERAP process there is no cut-off date to submit an ERAP application. Indeed, this poorly crafted ERAP process has in effect extended the covid moratorium past January 2022 on the backs of hurting landlords with no end in sight as anyone, at any time, for any unchecked selfish or bad faith reason can file an ERAP application with the intent to get a stay.
Now, for the reasons stated above, this Court finds that the Tenant Safe Harbor Act protections do not apply to holdover proceedings following foreclosure. Here the respondent did not affirm in her affidavit that there was a landlord/tenant relationship between her and the petitioner. Instead, she argues that there is a case pending in Supreme Court to determine the rightful owner of the property. Notably, there has been no Decision and Order rendered staying the proceedings in this court. In fact, in May 2020, the Supreme Court (J. Lefkowitz) dismissed plaintiff Lisa Godette's claim against Federal Nation Mortgage Association (Index No. 64119/2019).
Respondent moreover did not claim to have a lease agreement with petitioner. Petitioner established through documentary evidence that the property was foreclosed upon and that the petitioner is the owner of the premises. A copy of the Referee's Deed In Foreclosure dated September 13, 2017 was attached to Petition. Accordingly, as respondent has failed to demonstrate that she is a tenant or lawful occupant of the premises, the Court finds that the Tenant Safe Harbor Act financial hardship defense must fail. For these same reasons the Court also find that the ERAP stay must be vacated/lifted.
Accordingly, in order to forestall any further delays, the judgment of possession and warrant of eviction shall issue.
This constitutes the Decision and Order of this Court.
The court considered the following papers on this motion: Notice of Motion, dated February 7, 2022; Affirmation in support; Exhibits A-B. Affirmation in Opposition, dated March 30, 2022; Exhibits A-B.