Opinion
Index No. 559-21
01-05-2023
Foursome Associates, LLC, Petitioner, v. Ellease Clark and DAVID WASHINGTON and JOHN or JANE DOE, Respondents.
Carl L. Finger, Esq. Finger & Finger, PC Attorneys for Petitioner Theresa M. Gerardi, Esq. Legal Services of the Hudson Valley Attorneys for Respondents
Unpublished Opinion
Carl L. Finger, Esq.
Finger & Finger, PC
Attorneys for Petitioner
Theresa M. Gerardi, Esq.
Legal Services of the Hudson Valley
Attorneys for Respondents
HON. NICHELLE A. JOHNSON, CITY JUDGE OF MOUNT VERNON
Petitioner commenced this nonpayment proceeding in November 2021 seeking to recover possession of the ETPA regulated premises located at 21 Rich Avenue, Apt 1L, Mount Vernon, New York 1055. The petition states that "respondent is tenant of the premises who entered into possession of thereof under a written rental agreement between landlord and respondent..." The petition alleges that petitioner served respondent Ellease Clark with a Fourteen Day Rent Demand, a copy of which was attached. The Fourteen Day Rent Demand, which was served on April 15, 2021, notified respondent that there was outstanding rent arrears in the amount of $2,114.61 and that she had fourteen days to pay the arrears or petitioner would commence a summary proceeding to recover possession of the premises. The petition further alleges that the total amount of rent arrears due as of the filing of the petition was $4,623.21. Petitioner subsequently filed the instant non payment petition against respondents Ellease Clark and David Washington on July 13, 2021. November 5, 2021. The matter first appeared on the Court's calendar on August 2, 2021. An individual named John Ivery appeared on behalf of the respondents. He represented that he was the grandson of Ellease Clarke and the brother of David Washington. Mr. Ivery was instructed by the Court to contact Legal Services of the Hudson Valley so that respondents could try and obtain counsel to represent them in the instant matter. On the next adjourn date, August 18, 2021, Mr. Ivery appeared again on behalf of the named respondents and indicated that he and his brother were looking to pay rent. Mr. Ivery was again referred to the Legal Services of the Hudson Valley and the matter was adjourned to October 13, 2021. On October 13, 2021 Mr. Ivery appeared once again on behalf of the respondents and once again was referred to LSHV. The Court also inquired as to whether respondents had a COVID Hardship to which Mr. Ivery respondent that his brother had at some point contracted COVID. The Court provided Mr. Ivery with a copy of the COVID Hardship Declaration. On October 14, 2021 respondent David Washington filed a COVID Declaration with the Court. Nevertheless, on the next adjourn date on November 10, 2021 Mr. Ivery yet again appeared on behalf of both named respondents, the petition was amended to include him as an occupant and then Mr. Ivery entered into a stipulation with petitioner's counsel on behalf of himself, as an occupant of the premises, and both named respondents, to a final judgment of $6,793.65 which was stayed until December 3, 2021. On January 27, 2022 a final judgment and warrant were issued by the Court.
Thereafter, on March 31, 2022 respondent David Washington, through counsel, filed an Order to Show Cause seeking a stay of the execution of the warrant, or in the alternative, a vacatur of the warrant and judgment. The grounds for the stay were based upon respondent Washington's filing of an ERAP application on January 11, 2022. The Order to Show Cause was initially on the Court's calendar for March 23, 2022 and the matter was adjourned to be fully heard on April 6, 2022. It was on the April 6, 2022 adjourn date that respondent Washington first informed the Court that respondent Ellease Clark was deceased and that Mr. Ivery, who had appeared numerous times on respondents' behalf, had been incarcerated. Respondent indicated that it needed petitioner to submit the requisite information for the ERAP application to be processed. Petitioner stated that it did not want a new tenant in Ms. Ellease's place and that the arrears for the premises totaled $18,293.00. The matter was adjourned to May 26, 2022. The Court vacated the judgment and warrant of eviction and the matter was adjourned due to the ERAP stay. Currently, twelve (12) months later, the ERAP application is still pending review.
Petitioner now moves to vacate the ERAP stay.
Respondent opposes the motion.
In support of the motion to vacate the ERAP stay, petitioner asserts that the stay is futile, contravenes the purposes underlying ERAP and is contrary to fundamental principles of equity. Petitioner further asserts that respondent Washington is not a tenant and therefore not a proper ERAP applicant. Petitioner further asserts that respondent cannot preserve the tenancy herein by receiving ERAP benefits as payment of rent will not create a tenancy or resolve the holdover. Petitioner states that respondent Clark has been deceased for some time and respondent Washington is squatting in her apartment. Petitioner notes that in contrast to a holdover proceeding in a non-payment proceeding, the payment of back rent from ERAP resolves the petition and continues the tenancy. Petitioner avers that respondent cannot cure the basis for terminating his tenancy in this holdover, and as such, ERAP funding would be futile. Petitioner contends that Westchester County residents, like respondent Washington, are not eligible for ERAP since funding has been depleted and New York has stated that Westchester County is not one of the remaining counties that is eligible for any projected available funding. Petitioner further asserts that it would be absurd for a non-tenant to maintain a stay of indefinite duration based upon an ERAP application that, if granted, will not address the non-rent related basis of the respondent's holdover. Accordingly, the petitioner argues that an ERAP stay is futile and prejudicial since it unfairly interferes with his rights as a property owner to use and occupy his home in its entirety.
In opposition to the motion, respondent Washington asserts that he and his brother currently live in the premises and are able to pay ongoing rent. Respondent further asserts that he has been living in the premises since 2018 and that he had been living with his grandmother Ellease Clark in the premises prior to her death in June 2021. In his affidavit attached to the opposition papers, Mr. Washington affirms that has lived in the premises since May 2018 and lived with his grandmother Ellease Clark, until her death in June 2021. He further affirms that he currently lives in the premises with his brother John Ivery, who is gainfully employed and that he is able to pay ongoing rent with the assistance of his brother and the Social Security Disability benefits he receives. Respondent contends that the ERAP statute explicitly restricts evictions in nonpayment actions and there is no question that the instant eviction proceeding is for nonpayment of rent. Respondent further contends that there is no caselaw to support the petitioner's request that the stay be lifted. It is respondent's position that the stay in the instant matter is mandatory and cannot be vacated. Notably, respondent's opposition fails to address why the Court was only notified of the death of Ellease Clark in April 2022, nine (9) months after the instant action was commenced and numerous appearances on the record were made on behalf of respondents.
In reply, petitioner asserts that respondent concedes the key fact which supports a lifting of the stay, that being that respondent Clark, the leaseholder is deceased and respondent Washington occupies the premises without being on the lease. Respondent further states that it is not interested in the ERAP program, will not participate in ERAP for respondent and will not accept funds on behalf of respondent Washington for whom their exists neither an obligation to pay rent nor the right to remain in possession of the premises. Petitioner contends that respondent Washington is merely a squatter and case law has established that squatters are ineligible for ERAP and therefore ineligible to benefit from the automatic stay. Accordingly, petitioner maintains that the ERAP stay should be vacated.
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 (L.2021, c. 417, Part A, '4). However, the ERAP statute is not a indiscriminate measure designed to protect tenants like the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 did by essentially staying all eviction proceedings. Rather, it provides monetary benefits to tenants and landlords, where the tenants can demonstrate financial hardship that prevented them from paying their rent. It is intended to provide relief to financially challenged tenants while preventing the landlords from experiencing financial distress of their own from a lack of rental income upon which they rely. It is not a blanket measure designed to protect tenants indefinitely from having their tenancies being lawfully terminated and being evicted from premises from which they refuse to timely vacate.
In considering whether to vacate the ERAP stay in the case at bar, the court must avoid an unreasonable or absurd application of the law when interpreting the ERAP statute. See People v Schneider, 37 N.Y.3d 187 (2021). "The ERAP legislation was not intended to act as a prophylactic statute nor was it designed to create a barrier preventing small property owners from advancing litigation involving residential properties, where the tenancy is not subject to statutory control, landlord expresses its intent not to seek use and occupancy, and desires to pursue litigation where the tenancy has been properly terminated". Papandrea-Zavaglia v Hernandez-Arroyave, 75 Misc.3d 541 (Civ Ct Kings Cty 2022). Moreover, a stay under the ERAP statute is only appropriate when the benefit provided could potentially resolve litigation. Id. When the equities of an ERAP application are so out of balance as to warrant an exception to the statute, courts have vacated an ERAP stay. Silverstein v Huebener, 2022 WL 31051(U) (NY Civ Ct 2022).
As this Court has noted in a previous decision, Federal Natl. Mtge. Assn. v Godette, 75 Misc.3d 770 (Mt Vernon City Ct 2022), numerous courts 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. Some considerations for vacating a stay include, 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 basis criterion for assistance as outlined in the statute, and whether the equities favor the landlord. Moreover, the court must evaluate the specific facts in the proceeding when determining whether a vitiation of the ERAP stay is warranted. See West 49th Street, LLC v O'Neill, 76 Misc.3d 459 (Civ Ct NY Cty 2022)(ERAP stay vacated where respondent asserted succession rights to a rent stabilized apartment as a family member of the deceased tenant of record and claim had yet to be adjudicated); Papandrea-Zavaglia v Hernandez-Arroyave, 75 Misc.3d 541 (Civ Ct Kings Cty 2022) (ERAP stay vacated where petitioner was not seeking use and occupancy and sought possession of the premises so that the building in which it was located could be sold); Actie v Gregory, 74 Misc.3d 1213 (A) (Civ Ct. Kings Cty 2022) (ERAP stay vacated where landlord sought to use unregulated apartment in home with four or few units for personal family use); Joute v Hinds, 75 Misc.3d 764 (Civ Ct. Kings Cty 2022) (ERAP stay vacated in unregulated tenancy with no rental obligation); Kelly v Doe, 75 Misc.3d 197 (Civ Ct Kings Cty 2022)(ERAP stay vacated 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); Abuelafiya v Orena, 73 Misc.3d 576, 580, (NY Dist Ct 2021)(ERAP stay vacated where court found the tenants owned a second home); Ami v Ronen, 75 Misc.3d 335 (Civ Ct Kings Cty 2022) (ERAP stay vacated where petitioner sought to recover the premises, an unregulated apartment, for his personal use) ; see also, 5th & 106th Assoc. LP v Hunt, 2022 NY Misc. LEXIS 2966; 2022 NY Slip Op 22205 [Civ Ct. New York Cty 2022](vacating ERAP stay where court found that the tenant was not eligible for ERAP payments); Bay Park Two-LLC v Pearson, 2022 NY Slip Op 22346 (Civ Ct Kings Cty 2022)(vacating ERAP stay in non-payment proceeding where respondent receives Section 8).
In the case at bar, at present, respondent Washington is not a tenant or an occupant obligated to pay rent pursuant to an agreement, written or oral. Although he claims to have succession rights to the apartment he has provided no additional proof to support even a colorable claim of succession and his claim has not yet been adjudicated. As such, he has no obligation to pay rent as there is no lease agreement between respondent and petitioner prior to a favorable determination by this Court that he is entitled to become the rent paying tenant of record. A successor in interest is not a tenant until he or she becomes a party to a lease or rental agreement and is not responsible for rent that became due prior to the commencement of this proceeding. Strand Hill Assocs v Gassenbauer, 41 Misc.3d 53 (App Term 2nd Dept 2013). Petitioner has stated that it will not participate in or accept funds from ERAP for respondent Washington since he is not a tenant. Therefore, a determination on the merits of respondent Washington's succession claim would further an appropriate and judicious disposition of the instant matter.
The Court finds that petitioner has demonstrated that payment of rental arrears will not resolve the instant matter and the equities strongly favor the petitioner. The specific facts of the case at bar support a vacatur of the stay. Petitioner commenced the instant action on July 13, 2021 seeking rent arrears from the tenant of record Ellease Clark. For the first, eight (8) months the instant matter was pending respondent Washington failed to appear in person and his alleged brother John Ivery appeared on his behalf. At no time during those eight months did respondent Washington inform the Court that his alleged grandmother, who was the tenant of record, had passed away in June 2021, which was before the proceeding was commenced. Respondent Washington has also failed to present even a colorable succession claim. His self serving affidavit is the only support he provides for his claim that Ellease Clark was his grandmother and that he had been living in the premises with her for the requisite time period. Moreover, respondent Washington is a SSD recipient and as such, since he receives a subsidy his application will only be considered after everyone else's application has been reviewed and paid. Requiring petitioner to wait indefinitely for respondent Washington to receive a determination regarding his pending ERAP application is an unnecessary exercise in futility since payment of approved ERAP funds would not preserve an existing tenancy or create one. To the contrary, a determination on the merits of respondent Washington's succession claim could preserve his home and create a tenancy.
Accordingly, the motion to vacate the ERAP stay in the instant matter is granted. The matter is restored to the calendar for a conference on February 1, 2023 at 2:00 pm.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion, dated August 26, 2022, Affirmation in Support; Affirmation in Opposition, dated September 20, 2022, Affidavit in Support; Reply Affirmation, submitted September 28, 2022.