II LP v. Stephanie Nicole Fountain and John Doe, Respondent (2023)

The following papers numbered 1-3 were read and considered on petitioner's motion to vacate the Emergency Rental Assistance Program ("ERAP") stay and restore the matter to the Court calendar.

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Affirmation/Affidavits in Opposition 2

Notice of Petition and Petition 3

On January 31, 2022, petitioner filed a Notice of Petition and Petition regarding a non-payment matter. Respondent was served and has appeared. The matter was stayed pursuant to respondent's pending Emergency Rental Assistance Program ("ERAP") application. On March 9, 2023, petitioner filed the instant motion to vacate the ERAP stay and restore the matter to the Court calendar. Respondent submitted opposition on April 5, 2023.

Petitioner argues the ERAP stay should be vacated as respondent " . . . resides in a Low Income Housing Tax Credit building governed by HUD [Department of Housing Preservation and Urban Development] and thus resides in subsidized housing." (Petitioner's Affirmation, pg. 1, para. 5). Petitioner cites to the Office of Temporary and Disability Assistance ("OTDA") which states in relevant part "[a]pplications from subsidized housing tenants whose rent is limited to a certain percentage of income (including public housing Section 8 and FHEPS) are not currently able to be paid . . . " (see also, Bay Park Two, LLC v. Tekecia Pearson, 2022 NY Slip Op 22342 [Kings County 2022]; Merat Leshchinsky v. Hopelyn and Kalawe Lutula, 2022 NY Slip Op 51556 [New York County 2022]). Petitioner seeks to vacate the ERAP stay based on prejudice and futility.

However, this Court agrees with respondent and continues to follow the guidance of Administrative Order 34. AO/34/22 provides in relevant part:

5. . . . Eviction 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.

This provision is clear that all proceedings, including those involving Section 8 recipients and tenants residing in Low Income Housing Tax Credit buildings, are stayed during the pendency of an ERAP determination. Here, respondent has a pending ERAP application. (Respondent's Opposition, pg. 2, para. 5; Exhibit A). Respondent also distinguishes the cases relied upon by petitioner in that respondent's rent is not limited to a certain percentage of her income, she has been paying ongoing rent, less than fifteen (15) months of arrears are owed, and no pre-pandemic arrears are owed. (Id. at pg. 2, para. 9-10; Exhibits B).

This Court continues to follow the guidance of AO/34/22 in staying proceedings where an ERAP application is pending. Based on the foregoing, petitioner's motion to vacate the ERAP stay is hereby denied. The Clerk of the Civil Court is directed to schedule this matter for conference and notify all parties. Appearances are required.

Ada D. Medina, J.