Opinion
Index 94101/2018
03-29-2022
YEHUDA SILVERSTEIN, Petitioner, v. LEVI HUEBNER and ELIE POLTORAK, et al., Respondents.
Unpublished Opinion
Present: Hon. Jack Stoller, Judge, Housing Court.
DECISION/ORDER
HON. JACK STOLLER J.H.C.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
Pages numbered
Order To Show Cause (Seq. #20) and Supplemental Affidavit and Affirmation Annexed 1, 2, 3
Affirmation and Affidavit In Opposition 4, 5
Affirmation and Affidavit In Reply 6, 7
Upon the foregoing papers, the Decision and Order on this motion are as follows:
Yehuda Silverstein, the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Levi Huebner, Suri Huebner, and Chaya Huebner ("Respondents"), respondents in this proceeding, and Elie Poltorak ("Co-Respondent"), another respondent in this proceeding, seeking possession of the subject premises. Petitioner obtained judgments against Respondents and Co-Respondent. The Court previously granted Co-Respondent's motion to stay execution of the warrant through March 15, 2022 for Co-Respondent to vacate possession. CoRespondent then applied for benefits pursuant to the Emergency Rent Assistance Program ("ERAP"), effectuating a statutory stay. Petitioner now moves to vacate the stay.
Petitioner previously obtained a judgment against Co-Respondent on inquest and a warrant issued. The Court denied prior motions of Co-Respondent to vacate the judgment. Various statutes have stayed the execution of the warrant, but those stays have since been vacated. The Court resolved a previous order to show cause of Co-Respondent's by staying the execution of the warrant through March 15, 2022 for Co-Respondent to vacate. Co-Respondent applied for ERAP benefits on March 10, 2022.
Section 8 of subpart A of part BB of chapter 56 of the laws of 2021, as amended by Section 4 of part A of chapter 417 of the laws of 2021, stays eviction proceedings upon an ERAP application pending a determination of eligibility. On January 16, 2022, Chief Administrative Judge Lawrence Marks promulgated Administrative Order 34/22 ("AO 34/22"). AO 34/22 provides, inter alia, that "[e]viction matters where there is a pending ERAP application shall be stayed until a final determination of eligibility for rental assistance is issued by the Office of Temporary and Disability Assistance (OTDA) including appeals." As ERAP provides benefits to landlords as well as tenants, in the form of accrued rent arrears, a payment of rent arrears as such could naturally and foreseeably resolve litigation that had been over nonpayment of rent. A stay of litigation to advance a resolution of a dispute by alternative means is an acceptable means by which a procedural statute may address litigation. Harbor Tech LLC v. Correa, 73 Misc.3d 1211(A)(Civ. Ct. Kings Co. 2021).
However, when an ERAP application has no relevance to the resolution of the dispute before the Court or when the equities are so out of balance as to warrant an exception to the statute, Courts have vacated stays occasioned by ERAP applications. See, e.g., Kelly v. Doe, 2022 N.Y. Slip Op. 22077 (Civ. Ct. Kings Co.)(stay vacated when the ERAP applicants were squatters), Actie v. Gregory, 2022 N.Y. Slip Op. 50117(U)(Civ. Ct. Kings Co.)(stay vacated where an ERAP applicant was a tenant who had already moved out of the premises), Abuelafiya v. Orena, 73 Misc.3d 576 (Dist. Ct. Suffolk Co. 2021)(stay vacated when the ERAP applicant had a second home). In order for Petitioner to prevail on his motion, Petitioner must show that the facts herein similarly demonstrate that Co-Respondent's ERAP application would not resolve this matter and that equities are in Petitioner's favor.
The record on this motion practice shows that Petitioner is not a landlord with a large number of units. Petitioner owns the subject premises, a condominium unit, and his own apartment, a condominium unit that is next door to the subject premises. Petitioner rented the subject premises to Respondents at a monthly rent of $4,000. Co-Respondent moved into the subject premises at Respondents' behest and Respondents have long since vacated the subject premises. Petitioner then commenced this proceeding in November of 2018 predicated on notices served starting in September of 2018. Except for one payment of $12,000, CoRespondent has not paid use and occupancy for two years and arrears in use and occupancy exceed $80,000. Petitioner avers in support of the motion that he wishes to recover possession of the subject premises for his personal use, in particular his large family, which he has expressed that his own condominium unit cannot comfortably accommodate, a sentiment that Petitioner has expressed numerous times in open Court.
In addition to the facts adduced as such on the record in this motion practice, the Court's familiarity with the facts of this case stem from six prior motions for various kinds of relief in this case that the Court has already ruled on. Two of those decisions were reported. Silverstein v. Huebner, 2021 N.Y. Slip Op. 31992(U)(Civ. Ct. Kings Co.), Silverstein v. Huebner, 72 Misc.3d 1212(A)(Civ. Ct. Kings Co. 2021). The Court also held a four-day hearing on Petitioner's prior challenge to a hardship declaration that Co-Respondent had filed in this proceeding pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act ("CEEFPA"), a hearing that resulted in a 21-page decision detailing the effects of the pandemic on Co-Respondent.
The Court has previously found that Co-Respondent is immuno-compromised and is also wheelchair-bound.
Although Co-Respondent has accrued liability for use and occupancy, Co-Respondent has no landlord/tenant relationship with Petitioner, who originally intended to enter into a landlord/tenant relationship with Respondents, not Co-Respondent. The circumstances of CoRespondent's occupancy of the subject premises therefore show that he is a licensee whose license has terminated upon Respondents' vacatur. 85 Fourth Partners, L.P. v. Puckey, 16 Misc.3d 136(A)(App. Term 1st Dept. 2007), Starrett City, Inc. v. Smith, 25 Misc.3d 42, 46 (App. Term 2nd Dept. 2009).
As the ERAP statute provides that a household shall be eligible for benefits if the household is obligated to pay "rent," L. 2021, c. 56, Part BB, Subpart A, §5(1)(a)(i), and as the ERAP statute defines "rent" with reference to RPAPL §702, L. 2021, c. 56, Part BB, Subpart A, §2(9), and as RPAPL §702 defines "rent" with reference to an "oral or written agreement," a licensee would not be eligible for ERAP benefits. 2986 Briggs LLC v. Evans, 2022 N.Y. Slip Op. 50215(U)(Civ. Ct. Bronx Co.).
The proposition that a licensee is not eligible for ERAP benefits bears particular saliency in this matter given that a landlord who accepts ERAP benefits waives its ability to regain possession of the premises for twelve months on the basis of, inter alia, "expired lease or holdover tenancy". L. 2021, c. 56, part BB, subpart A, §9(2)(d), as amended by L. 2021, c. 417, Part A, §5. Petitioner's emphatically- and frequently-expressed desire to regain possession of the subject premises for the personal use of his large family renders ERAP particularly irrelevant to a resolution of the issues in this litigation.
The statutory exception to this provision for immediate personal use of an owner does not appear to apply to Petitioner, as the exception applies in buildings that contain no more than four units. Id. at §5(iv). The subject premises is located in a condominium building that has more than four units.
The Court must interpret a statute so as to avoid an unreasonable or absurd application of the law. People v. Schneider, 37 N.Y.3d 187, 196 (2021). As Co-Respondent is a licensee, as Petitioner is a landlord who only owns his own unit and the subject premises, as Petitioner has been seeking possession of the subject premises for his personal use for a protracted period of time, as a stay pending Co-Respondent's ERAP application bears no relation to a resolution of the issues of possession in this matter, and as Respondent does not appear to be eligible for ERAP assistance, a stay of the execution of the warrant for the duration of Co-Respondent's ERAP application would visit an unreasonable and absurd application of the statute upon Petitioner. While Co-Respondent's issues regarding his disability are legitimate concerns, Co-Respondent has been living in Petitioner's apartment without Petitioner's permission and with no colorable defense to Petitioner's cause of action for possession for three-and-a-half years at this point. The equitable limits accommodating Co-Respondent's occupancy have been reached and then some.
Accordingly, it is
ORDERED that the Court grants Petitioner's motion to vacate the stay, and execution of the warrant of eviction against Co-Respondent may proceed forthwith upon service of a marshal's notice.
This constitutes the decision and order of this Court.