Opinion
Index No. 896-21
11-10-2022
Vernon Sealy, Petitioner, v. Adel Bror, JAMILA EDDACH, Respondents, "JOHN DOE" and "JANE DOE", Respondents-Undertenants.
Cindy N. Brown, Esq. Tilem & Associates, PC Attorneys for Petitioner Jordan J. Tapia, Esq. Moss & Tapia Law, LLC Attorneys for Respondents
Unpublished Opinion .
Cindy N. Brown, Esq.
Tilem & Associates, PC
Attorneys for Petitioner
Jordan J. Tapia, Esq.
Moss & Tapia Law, LLC
Attorneys for Respondents
HON. NICHELLE A. JOHNSON CITY JUDGE
Petitioner commenced this holdover proceeding in November 2021 seeking to recover possession of the unregulated premises located at 80 Fletcher Avenue, Third Floor, Mount Vernon, New York 10552. The petition states that the respondents are month to month tenants whose monthly rent is $1,200.00. Petitioner served respondents with a Ninety Day Notice on June 14, 2021 which notified respondents that the petitioner elected to terminate respondents month to month tenancy and requested that they vacate the premises on or before September 30, 2021. Petitioner subsequently filed the instant holdover petition on November 5, 2021. Respondent Adel Bror filed his answer with the court on December 2, 2021 and the parties appeared before the court on several adjournments. Thereafter, respondent applied for ERAP assistance on February 14, 2022 and the instant matter was stayed. Currently, almost nine (9) 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 Vernon Sealy, a 94 year old man, affirms that the premises he seeks to regain possession of in this holdover proceeding is an unregulated single family home. He further affirms that respondents were served with the requisite ninety (90) day notice of termination on June 14, 2021 and thereafter, the petition on November 21, 2021. Petitioner avers that this action was brought as a holdover because his sole objective is to regain possession of the premises and that he is not seeking a money judgment. Petitioner states that he would not accept any ERAP payment conditioned upon respondent remaining in the premises and notes that there is no certainty that respondents will be approved for ERAP or if the program will be further funded in the future. Petitioner further contends that in retaliation for his choosing to terminate the tenancy respondent made complaints to the City of Mount Vernon that he had inadequate heat while he was actually leaving all of the windows open causing petitioner's utility bill to be extremely high. Petitioner further contends that respondent made complaints about electrical problems in the premises, which petitioner asserts were caused by illegal work done by respondent to the premises, which resulted in violations being issued against petitioner. Petitioner asserts that he attempted to address the violations but respondent refused to allow access resulting in the premises being condemned on March 16, 2022 which forced everyone living in the premises, including petitioner and his disabled daughter as well as respondents, to vacate the premises. As such, respondents have not been in occupancy of the subject premises since March 16, 2022 and have been living elsewhere since that time. Petitioner states that he has no intention of resuming a landlord-tenant relationship with the respondents. 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, respondents assert that the ERAP statute explicitly restricts evictions in both nonpayment and holdover proceedings until a determination of the application is made. As such, respondent contends the stay in the instant matter is mandatory and cannot be vacated. Notably, respondent's opposition fails to address any of the factual allegations with regard to the tenancy, any issues related thereto, including their alleged behavior which led to the building code violations, their asserted refusal to allow repairs to be made to prevent the condemnation of the premises, or the fact that they have been living elsewhere since March 2022, presumably paying rent.
In reply, petitioner argues that just because respondents owe rent arrears and petitioner has mentioned the fact that rent arrears are owed does not bar vacatur of the ERAP stay since petitioner is not seeking a money judgment and has agreed to waive all rent arrears. Petitioner further states that ERAP was created to preserve tenancies where the tenant was at risk of eviction due to financial hardship which is not the case in the instant matter. Rather, petitioner states that he terminated the tenancy and commenced the instant proceeding to regain possession of the property not to recover rent. 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.
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. See 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).
In the case at bar, 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. Petitioner commenced the instant action on the grounds that he terminated respondents' month to month tenancy by serving them with the requisite 90 Day Notice. Petitioner has agreed to waive all rights to any rent arrears that may have accrued while the respondents were in possession of the property and only seeks a judgment of possession so that he may use and occupy his home, which includes the subject premises, in its entirety. Significantly, respondents are not currently in possession of the premises as it was declared condemned on March 16, 2022 and they have been living elsewhere for over the past seven (7) months, presumably paying rent. As such, there is no danger that they are being ousted from the subject premises with nowhere else to live. Requiring petitioner to wait indefinitely for respondents to receive a determination regarding their pending ERAP application, which if approved would be to pay for rent arrears not being sought by petitioner, is an unnecessary exercise in futility where petitioner has no intention of reinstating the tenancy and said delay would be prejudicial to the petitioner.
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 November 28, 2022 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 5, 2022, Affirmation in Support, Affidavit, Exhibits A-E; Affirmation in Opposition, dated August 30, 2022, Affidavit, Exhibit A; Reply Affirmation, submitted September 1, 2022