Opinion
Index No. LT-0131-21
03-18-2022
HUDSON AVENUE HOUSING ASSOCIATES, LLC, Petitioner, v. Rachael HOWARD, Respondent
Bartlett, Pontiff, Stewart & Rhodes, P.C., John D. Wright, Esq., of counsel, for the Petitioner Legal Aid Society of Northeastern New York, Yoana Kostadinova, Esq., of counsel, for the Respondent
Bartlett, Pontiff, Stewart & Rhodes, P.C., John D. Wright, Esq., of counsel, for the Petitioner
Legal Aid Society of Northeastern New York, Yoana Kostadinova, Esq., of counsel, for the Respondent
Gary C. Hobbs, J. The issue in this case is whether Part BB, Subpart A, § 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417, otherwise known as the COVID-19 Emergency Rental Assistance Program (ERAP) stays a holdover proceeding while an emergency rental assistance program application is pending, even where the Landlord-Petitioner is not seeking payment of rental arrears or reasonable use and occupancy for the subject property. For the reasons set forth below, this Court finds that an automatic stay does apply in holdover proceedings.
Background Facts
The Petitioner, Hudson Avenue Housing Associates, LLC, is the owner of 22 Columbia Avenue, Glens Falls, New York. The Respondent, Rachael Howard, is a tenant at apartment D in the subject property. On March 12, 2021, the Petitioner commenced a summary proceeding action seeking to evict the Respondent from the subject property on the grounds that the Respondent was holding over after service of a 90-day Notice terminating her tenancy [March 4, 2021, Verified Petition ¶s 3-6]. The Petitioner's Verified Petition sought a judgment of possession, warrant of eviction, together with a "judgment against the respondents for rent/late fees/use and occupancy charges in arrears as of March 4, 2021, in the amount of $2,901.00" [March 4, 2021, Verified Petition ¶7]. On June 5, 2021, the Respondent filed an application of Emergency Rental Assistance with the Office of Temporary and Disability Assistance. The Respondent also filed her Hardship Declaration, which resulted in a stay of the summary proceeding to August 31, 2021, pursuant to Chapter 381 of the Laws of 2020, the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. The stay was thereafter extended to January 15, 2022, by operation of Chapter 417 of the Laws of 2021 ["Act" (effective September 2, 2021), which reinstated many COVID-19 related protections for tenants in residential and commercial proceedings following the United States Supreme Court decision granting injunctive relief in Chrysafis v. Marks , ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006 (2021). As of the date of this Decision and Order, the Respondent's ERAP application remains "pending." Thus, the Respondent's ERAP application has been "pending" for more than eight (8) months.
On January 19, 2022, the parties appeared in this Court. The Respondent asserted that, because there is a pending ERAP application, the Petitioner's summary proceeding was stayed pending final determination of the Respondent's ERAP application. The Petitioner asserted that the matter is a holdover proceeding, and the Petitioner is not seeking rental arrears. Respondent's counsel asserted that, pursuant to paragraph 7 of the Petition, the Petitioner is seeking a money judgment in the amount of $2901.00 for rental arrears or use and occupancy. The Petitioner's counsel responded that the Petitioner was waiving, on the Record, any claim to rental arrears or use and occupancy.
By letter motion dated January 20, 2022, the Petitioner asserted that the provisions of the COVID-19 Emergency Rental Assistance Program under Part BB, Subpart A, § 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417, only requires a stay of a summary proceeding where the Respondent would be eligible for coverage und the ERAP program. The Petitioner again asserted that it had withdrawn any request for payment of rent, use and occupancy or utilities, so the Respondent would not be eligible for coverage under the ERAP Act. By letter dated January 21, 2022, the Respondent asserted that the Petition must be stayed pursuant to Park E.L.P. v. Foster, 74 Misc.3d 213, 160 N.Y.S.3d 792, 2021 N.Y. Slip Op. 21347 [Civ. Ct. 2021] and pursuant to the legislative intent of the ERAP Act. On January 27, 2022, the Petitioner filed an Amended Petition, which removed any claim to rental arrears or use and occupancy.
By Decision and Order dated February 17, 2022, this Court held that plain language of Subpart A, § 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417, (the ERAP Act) clearly indicates that any pending ERAP application stays both non-payment and holdover proceedings until an eligibility determination is made. See, Sea Park E. L.P. v. Foster , 74 Misc. 3d 213, 216, 160 N.Y.S.3d 792 [Civ. Ct. 2021]. This Court further held that, upon written application to this Court and upon good cause shown, the Petitioner is entitled to a due process hearing to determine whether the Respondent is engaging in conduct to frustrate, delay, or otherwise impede a final determination of her ERAP application. This case was then ordered stayed pending final determination of the Respondent's ERAP application and/or pending a motion by the Petitioner seeking a due process hearing.
By Motion dated March 1, 2022, the Petitioner moved this Court for summary judgment pursuant to CPLR § 3212, and an order lifting the stay of this action pursuant to Part BB, Subpart A, § 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417, (the ERAP Act). The Petitioner's motion is supported by the Affidavit of Victoria M. Craft, Esq., counsel for the Petitioner, with annexed exhibits. The Respondent opposed the application in an Affidavit in Opposition, dated March 14, 2022, by Yoana Kostadinova, Esq., of counsel to the Legal Aid Society of Northeastern New York, Inc., attorneys for the Respondent. By Reply Affidavit dated March 15, 2022, by Victoria M. Craft, Esq., the Petitioner replied to the Respondent's Affidavit in Opposition.
In its motion, the Petitioner asserts that the Respondent is not entitled to the statutory ERAP Act stay because she not eligible for ERAP assistance. Here, the Petitioner asserts that a stay is only applicable for where the tenant would be eligible for coverage under the ERAP program [Craft 03-01-22 Affidavit, ¶ 7]. The Petitioner further asserts that the Respondent is not eligible for coverage under the ERAP Act because the Petitioner's Amended Verified Petition does not seek either rent arrears or use and occupancy charges, but merely seeks possession for the Respondent's wrongful holdover. [Craft 03-01-22 Affidavit, ¶s 11-12]. The Petitioner further asserts that, the Respondent is not qualified for the ERAP stay pending her application because the Respondent is qualified or was qualified for Section 8 housing, and the Office of Temporary and Disability Assistance website indicates that ERAP applications for subsidized housing applicants are not being paid regardless of the date the application was submitted [Craft 03-01-22 Affidavit, ¶s 9-10]. The Petitioner asserts that since "no rent is being sought, Respondent is not entitled to a stay pursuant to the assertion of a pending ERAP application [Craft 03-01-22 Affidavit, ¶ 16].
In response, the Respondent notes that on June 5, 2021, she applied for economic relief through the ERAP program and that her application is still pending [Kostadinova Affidavit ¶s 5-6, and Respondent's ERAP application No. 9HAQB]. Respondent further asserts that she is no longer qualified for Section 8 subsidy [Kostadinova Affidavit ¶s 16a, 18]. Respondent further asserts that the language of the ERAP Act stays all eviction proceeding, including holdover proceedings, regardless of whether the premises is subsidized housing [Kostadinova Affidavit ¶s 22-23]. Finally, the Respondent correctly notes that the Petitioner's motion does not seek a due process hearing [Kostadinova Affidavit ¶s 42-43] and that this Court has already decided that the automatic stay applies to the Petitioner's holdover summary proceeding [Kostadinova Affidavit ¶s 26-27].
In reply, the Petitioner asserts that, regardless of the Respondent's subsidy status, she is not eligible for coverage under the ERAP Act because the Petitioner has waived all back rent or use and occupancy charges [Craft 03-15-22 Affidavit ¶s 13-14]. However, in footnote #1, the "Petitioner reserves the right to seek past due use and occupancy charges if this Court determines this Respondent is entitled to a stay of this proceeding.
Analysis
In April of 2021, the legislature passed the COVID-19 Emergency Rental Assistance Program ("CERAP"), which funded approximately $2.6 billion for residential rent and utility assistance. On August 12, 2021, in the case Chrysafis v. Marks , ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006, the U.S. Supreme Court enjoined the enforcement of the COVID-19 Emergency Rental Assistance Program ("CERAP") residential eviction moratorium, finding that provisions that provided for a tenant to self-certify financial hardship and delayed a landlord from contesting the certification violated constitutional rights to due process. On September 2, 2021, New York Governor Kathy Hochul signed into law Part BB, Subpart A, § 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417, which amended the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (hereinafter referred to as "the ERAP Act").
Implementation of the Act was found to be necessary because "[m]ore than two million New Yorkers have been infected by the COVID-19 coronavirus, and the disease has killed more than 55,000 New Yorkers since March 2020. Measures necessary to contain the pandemic have brought about widespread economic and societal disruption. Millions of residents have experienced financial hardship due to such measures, which closed businesses and schools, and resulted in income losses across the state." See, ERAP Act § 2. Thus, the legislative intent of the Act is to assist in "stabilizing housing and small businesses" and to "help the state address the COVID-19 pandemic, protect public health, and foster a full and equitable recovery." See, ERAP Act § 2. To effectuate this legislative intent, the protections of the ERAP Act specifically apply to both non-payment and holdover eviction proceedings. See, ERAP Act § 8. More specifically, Section 8 of the ERAP Act provides:
"Restrictions on eviction. Except as provided in section nine-a of this act, eviction 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 or any local program administering federal emergency rental assistance program funds unless or until a determination of ineligibility is made. [If such eviction proceedings are commenced] Except as provided in section nine-a of this act, in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility."
Contrary to the Petitioner's position, this case is similar to Park E.L.P. v. Foster, 74 Misc. 3d 213, 215, 160 N.Y.S.3d 792 [Civ. Ct. 2021]. In Foster, the Petitioner asserted that the language of the Act limited the stay of eviction proceedings to claims where the Respondent "would be eligible" for coverage, and since the Petition sought unpaid rent from before the pandemic started, the Respondent's pending ERAP application could not result in a stay the proceeding. Id . at 215, 160 N.Y.S.3d 792. The Foster court rejected the Petitioner's assertion holding that statute requires "all proceedings shall be stayed pending a determination of eligibility." Park E.L.P. v. Foster , 74 Misc. 3d 213, 215, 160 N.Y.S.3d 792 [Civ. Ct. 2021]. See also, Sea Park E. L.P. v. Foster , 74 Misc. 3d 213, 215, 160 N.Y.S.3d 792 [Civ. Ct. 2021]. Here, while the Petitioner claims that it is waiving the right to past due rent or a judgment for use and occupation, footnote #1 of Petitioner's 03-15-22 Reply Affidavit clearly reserves the right to seek use and occupancy charges. Even if the Petitioner was not seeking or reserving the right to seek rental arrears or use and occupancy, the plain language of the statute clearly indicates that any pending ERAP application stays both non-payment and holdover proceedings until an eligibility determination is made. See , Part BB, Subpart A, § 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417; Sea Park E. L.P. v. Foster , 74 Misc. 3d 213, 216, 160 N.Y.S.3d 792 [Civ. Ct. 2021]. Thus, if "the legislature intended that only eligible applicants be granted a stay, pending determination, the statute would have so stated. The plain language of the statute clearly indicates that any pending ERAP application stays proceedings until an eligibility determination is made." Sea Park E. L.P. v. Foster , 74 Misc. 3d 213, 215-16, 160 N.Y.S.3d 792 [Civ. Ct. 2021]. This interpretation of the ERAP Act is confirmed by the information provided to landlords and tenants on the Office of Temporary and Disability Assistance website, which administers the state's Emergency Rental Assistance Program and provides, "Once you apply for ERAP, you cannot be evicted because your lease has expired, or because you did not pay rent during the COVID-19 Pandemic." https://otda.ny.gov/programs/emergency-rental-assistance/faq.asp#faq-tenant
Based on the foregoing, this summary proceeding, including the Petitioner's motion for summary judgment, is stayed pending a final determination of the Respondent's ERAP application. As this Court noted in its February 17, 2022, Decision and Order, the statutory stay of the proceeding does not mean that the Petitioner is without any remedy. By order dated August 12, 2021, the U.S. Supreme Court enjoined the enforcement of this provision of CEEFPA, Chrysafis v. Marks , ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006 (2021). finding that CEEFPA denied landlords a hearing challenging a tenant's self-certification of a hardship and that such a denial violated due process. The Legislature responded by enacting a new statute, signed into law on September 2, 2021, L. 2021, c.417 ("the New Statute"), that provides, inter alia, that hardship declarations, both newly-filed and filed pursuant to CEEFPA, effectuate a stay of evictions for the declarants through January 15, 2022, L. 2021, c. 417, Part C, Subpart A, § 6(a)(ii), but also that landlords may move to challenge hardship declarations on a showing of good faith. L. 2021, c. 417, Part C, Subpart A, § 10(a).
While the legislature did not amend the ERAP Act to require a due process hearing to allow the courts to determine whether the tenant/occupant is engaged in some conduct to delay the ERAP application process, New York law requires this Court to construe its statutes so as to avoid constitutional impairment. See generally , People v. Liberta , 64 N.Y.2d 152, 485 N.Y.S.2d 207, 474 N.E.2d 567 (NY 1984), United States v. Rumely , 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953), Collado v. Boklari , 27 Misc. 3d 161, 892 N.Y.S.2d 731 (Suf. Co. Dist. Ct. 2009). In the present case, the Respondent's application has been pending since June 5, 2021, and there is no indication why the application has been pending for such a long period of time without a final determination. Certainly, the tenant/occupant must actively pursue his or her ERAP application in good faith to be eligible for the continuing stay. To hold otherwise would allow tenants/occupants to apply for emergency rental assistance to obtain the stay of the summary proceeding, and then delay or fail to provide the Office of Temporary and Disability Assistance with the supporting documents necessary to evaluate his or her ERAP application. If a tenant/occupant causes undue delays in the final determination of the ERAP application, enforcement of the statutory stay would improperly deprive the landlord from the use of the subject property. Thus, upon written motion, this Court has the inherent authority allowed to determine "eligibility" for a continuation of the statutory stay. See, Abuelafiya v. Orena , 73 Misc. 3d 576, 580, 155 N.Y.S.3d 715 [N.Y. Dist. Ct. 2021] (the Court found that the tenants are ineligible for ERAP funding as they are not experiencing housing instability by virtue of the fact that they own a second house they may relocate to. Eligibility having been determined; the ERAP stay was vitiated). Here, the Petitioner's present motion does not seek a due process hearing.
Based on the foregoing, it is
Ordered, that the Petition and Notice of Petition are hereby stayed pending a final determination on the Respondent's ERAP application; and it is further
Ordered , that, upon written application to this Court and upon good cause shown, the Petitioner is entitled to a due process hearing to determine whether the Respondent is engaging in conduct to frustrate, delay, or otherwise impede a final determination of her ERAP application.