Opinion
No. 2023-23049
02-16-2023
Felitia 436 Convent Ltd. and Park Row 436 Convent Ltd., Petitioner, v. Kelly Simmers et al., Respondents.
Horwitz & Zim Law Group, PC (Eric Zim, Esq.), for the petitioner New York Legal Assistance Group (Elliot Edwards, Esq.), for the respondent-Kelly Simmers
Horwitz & Zim Law Group, PC (Eric Zim, Esq.), for the petitioner
New York Legal Assistance Group (Elliot Edwards, Esq.), for the respondent-Kelly Simmers
Karen May Bacdayan, J.
HON. KAREN MAY BACDAYAN JUDGE,
Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 17-21.
PROCEDURAL HISTORY AND BACKGROUND
This is a holdover proceeding commenced by petitioner ten years ago based on petitioner's election not to renew respondent's unregulated lease when her term expired. The following facts are not disputed: After six years of stays and adjournments due to a proceeding at the Division of Housing and Community Renewal ("DHCR") alleging a rent overcharge, a Petition for Administrative Review ("PAR") filed by respondent when her application was denied, and the pendency of an Article 78 proceeding challenging the DHCR determination on the PAR, the parties settled this matter on April 25, 2019 with a possessory judgment entered in petitioner's favor along with a monetary judgment against respondent in the amount of $28,000.00. Execution of the warrant was stayed through July 19, 2019. The marshal applied for a warrant pursuant to the judgment of possession in May 2019 and June 2019. Both applications were rejected, and the warrant finally issued in October 2019.
Numerous orders to show cause ensued, resulting in further stays. A "hardship declaration" was filed which stayed the proceeding until January 15, 2022. (L 2021, ch 417, part C, subpart A § 4.) In April 2022 respondent applied for the Emergency Rental Arrears Program ("ERAP"), and the proceeding was again statutorily stayed. (L 2021, ch 56, part BB, subpart A, § 8.) That application was later denied with the obscure notation: "Deemed ineligible per program requirements." Respondent then filed a second application one day before petitioner filed the current motion to vacate the stay based on the denial of the first application and informed petitioner of this in her opposition to petitioner's instant motion.
Petitioner has moved to vacate the ERAP stay. (NYSCEF Doc No. 17, combined notice of motion [sequence 14], Atias affidavit, petitioner's attorney's affirmation, and exhibits.) As basis for vacating the stay, petitioner's affidavit in opposition states "we no longer have a landlord-tenant relationship with [r]espondent." (Id. at 4, Atias affidavit ¶ 4.) Regarding the second ERAP application, petitioner takes the same position: that respondent is categorically ineligible for ERAP because there is no landlord-tenant relationship between the parties. Petitioner further avers that it "waives any and all potentially collectible covered ERAP arrears." (Id. ¶¶ 5-6.)
In opposition, respondent argues that the nature of this proceeding is different from those proceedings where stays were vacated in licensee, squatter, and superintendent proceedings, and proceedings after foreclosure. Such proceedings are governed by RPAPL 713 ("Grounds where no landlord-tenant relationship exists [emphasis added"]). Here, petitioner is proceeding pursuant to RPAPL 711 ("Grounds where landlord-tenant relationship exists [emphasis added]"). Respondent states that there is no case that could be found involving a holdover proceeding commenced pursuant to RPAPL 711 in which the court held that the ERAP stay should be vacated. (NYSCEF Doc No. 18, respondent's attorney's memorandum of law at 6-8.)
For the following reasons, the court holds that the ERAP stay should continue.
DISCUSSION
Contrary to respondent's assertion, the court notes that there is a case in which a court determined that the ERAP stay should be vacated in an RPAPL 711 (1) "expiration of term" holdover proceeding. In 178 Broadway Realty Corp. v Charles, 75 Misc.3d 937 (Civ Ct, New York County 2022), the court vacated an ERAP stay in a holdover proceeding where the landlord served respondents with a 60-day notice of non-renewal of their lease, and, like here, thereafter commenced an RPAPL 711 (1) proceeding based on the expiration of the tenant's term. The tenant then applied for ERAP and an automatic stay was imposed. The Charles court noted that petitioner, like here, had averred that it would not accept any ERAP funds. The holding in Charles has been cited in support of the position that tenants whose unregulated tenancies are not renewed are not eligible for an ERAP stay; and 2) ERAP stays in an expiration of lease holdover should be vacated as it is an exercise in "futility" to maintain it. (Charles at 940.)
As reasoned below, this court respectfully disagrees with the holding in Charles that an ERAP stay should be vacated on the basis of futility in a case commenced pursuant to RPAPL 711 (1) which is premised upon the expiration of a tenant's lease. This court has also previously rejected futility arguments in cases where the ERAP stay is challenged, instead relying on the plain language of the statute.
In the vast majority of published decisions where the ERAP stay has been vacated prior to an approval or denial in a holdover proceeding, the proceeding is commenced pursuant to RPAPL 713 ("Grounds where no landlord-tenant relationship exists [emphasis added"]). These decisions usually involve licensee, superintendent, squatter, and post foreclosure holdover proceedings, where the occupants were never individuals who had enjoyed a landlord-tenant relationship with the landlord.
Fernandez v Jones, 76 Misc.3d 861 (Civ Ct, Bronx County 2022); Awaly LLC v Pena, 75 Misc.3d 1227 (A), 2022 NY Slip Op 50673 (U) (Civ Ct, Bronx County 2022); 2986 Briggs LLC v Evans, 2022 NY Slip Op 50215(U) (Civ Ct, Bronx County 2022).
Karan Realty Assoc. LLC v Perez, 75 Misc.3d 499 (Civ Ct, Queens County 2022).
Kelly v Doe No.1, 75 Misc.3d 197 (Civ Ct, Kings County 2022).
However, the instant proceeding is commenced pursuant to RPAPL 711 ("Grounds where landlord-tenant relationship exists [emphasis added]"), which presumes that a landlord-tenant relationship was previously formed between the parties. Accordingly, this proceeding is distinguishable from the long line of cases finding that ERAP stays should be lifted in proceedings commenced pursuant to RPAPL 713 where "no landlord-tenant relationship exists."Moreover, after the passage of the Housing Stability and Tenant Protection Act ("HSTPA") in June 2019, the landlord tenant relationship is no longer severed by the issuance of a warrant; it is extinguished only after execution of the warrant, and a respondent may pay the full amount due any time up until execution which results in a vacatur of the warrant. (RPAPL 749 [3], as amended by L 2019, ch 37, part M, § 19, eff June 14, 2019.) As the warrant in this proceeding did not issue until October 19, 2019, after two failed attempts in May 2019 and June 2019, and after which the HSTPA was passed into law, the landlord-tenant relationship has yet to be severed by the execution of the warrant as against respondent.
Here, petitioner avers that it will not participate in or accept ERAP funds. (NYSCEF Doc No. 17 at 4, Atias affidavit ¶ 6 ["Petitioner forfeits and rejects any and all claim to any ERAP monies that may or could have been issued to Respondent"].) However, because the landlord-tenant relationship has not been extinguished pursuant to RPAPL 749 (3), as amended by L 2019, c 37, part M, § 19, eff June 14, 2019, it is not clear to the court what the Office of Temporary and Disability Assistance meant when it found that respondent was "deemed ineligible [for ERAP] per program requirements." That respondent could yet be approved for ERAP is evidenced by the ERAP approval in BOP MW Residential, LLC v Lin, 2023 NY Slip Op 23043 (Civ Ct, New York County 2023), an end of lease holdover proceeding commenced pursuant to RPAPL 711 (1) in which respondent was approved for $170,000 which the landlord accepted in two concomitant holdover proceedings. Thus, it cannot be said that it is futile to maintain the stay based on categorical ineligibility or on the absence of a landlord-tenant relationship.
Respondent in Lin owned two apartments in the same building, and petitioner sought to evict respondent from both apartments pursuant to RPAPL 711 in two separate proceedings.
Moreover, Respondent could benefit from an approval even if petitioner does not accept the approved funds in that petitioner may be estopped from seeking use and occupancy in this proceeding, or from seeking rent in a nonpayment proceeding, for the months that were approved. (L 2021, ch 56, part BB, subpart A, § 9[d] [i]; JSB Props. LLC v Yershov, 77 Misc.3d 235 [Civ Ct, New York County 2022] [holding that acceptance of ERAP fund does not foreclose a nonpayment proceeding for monies owed during the 12-month moratorium on eviction despite the absence of a lease].) Petitioner could equivocate and participate and accept approved funds. There is no legal bar to doing so, just as there is no requirement that a landlord participate in the ERAP application process or accept approved funds. If petitioner does participate, respondent could benefit from another 12 months of occupancy. Finally, while petitioner may refuse to participate in the program and reject collectible arrears, petitioner cannot unilaterally waive any protections or benefits that respondent may receive upon approval.
There is no cause under the facts and circumstances of this case to deprive respondent of the opportunity to receive an approval for ERAP; and whether petitioner participates and accepts money or not, litigation of this proceeding will continue once a determination of eligibility is made. (Park Cent. I LLC v Price, 2022 NY Slip Op 31909 [U] [Civ Ct, Bronx County 2022].)
CONCLUSION
Accordingly, for the foregoing reasons, it is
ORDERED that petitioner's motion to vacate the ERAP stay is DENIED; and it is further
ORDERED that this proceeding shall be placed on the ERAP administrative calendar pending a determination of respondent's second ERAP application.
This constitutes the decision and order of this court.