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Adem RACI, Petitioner, v. Nicole LOPEZ, Respondent.
The following papers were read and considered on the Petitioner's motion to vacate the ERAP stay
Notice of Motion and Affidavits Annexed 1
Memorandum in Support 2
Affirmation/Affidavits in Opposition 3
The COVID-19 Emergency Rental Assistance Program (“ERAP”) legislation (signed April 2021, L. 2021, c. 56, Part BB) created a program for the distribution of rent relief in the form of federal funding implemented and administered by the Office of Temporary and Disability Assistance (OTDA). As originally drafted, ERAP was designed “to establish a COVID-19 emergency rental assistance program.” In September 2021, the United States Supreme Court enjoined the enforcement of CEEFPA's eviction moratorium in Chrysafis v. Marks, 141 S. Ct. 2482 , and noting due process concerns, challenges to the implementation of the program and low public awareness, the Legislature amended ERAP.
In Chrysafis, the Court found a violation of the landlord's due process rights as they were precluded from requesting a hearing to challenge the tenant's self-certification of a Covid-related hardship. In response, the Legislature modified the legislation to permit such a hearing. However, as noted by the Court in Carousel Props v. Valle, the ERAP stay is different, as the intent was to compensate landlords for past rent. 73 Misc 3d 1217[A] [Dist. Ct., Suffolk Co., 2022]. Further, the ERAP legislation fails to provide a mechanism for landlords to challenge the stay, despite the amendments to the legislation post Chrysafis. Id.
The legislation provides that “any pending eviction proceeding” including both nonpayment and holdover matters, “shall be stayed pending a determination of eligibility.” Accordingly, once a tenant files an application, an automatic stay is imposed pending the determination of the ERAP application. Further, Administrative Order 34/22 dated January 16, 2022, provides that where there is a pending ERAP application, eviction matters shall be stayed until a final determination of eligibility for rental assistance is issued by the Office of Temporary and Disability Assistance, including appeals.
This Court agrees that permitting a tenant to “self-certify” a hardship without permitting a good faith challenge to the stay, constitutes a violation of due process. This is especially so given the fact that the eviction moratorium which expired in January 2022 has been effectively extended through the ERAP application process. The court is unaware of an end date in which tenants may apply or whether any funds remain available for distribution.
Petitioner moves to vacate the ERAP stay in the above-entitled matter on the grounds that the application was filed after the exhaustion of available funds. Petitioner contends that even the maximum funds will not cover the Respondent's arrears and as such, argued the stay is futile and contrary to the policy of the state. Petitioner cites a litany of cases in which ERAP stays were vacated. However, these have little bearing on the facts of this case. Kristiansen v. Serating, 75 Misc 3d 331, 332 [Suffolk County Dist Ct, 2022], Ami v. Ronen, 75 Misc 3d 335 [Civ Ct, Kings County 2022], Kelly v. Doe, 75 Misc 3d 197 [Civ Ct, Kings County 2022] and Papandrea-Zavaglia v. Arroyave, 75 Misc 3d 541 [Civ Ct, Kings County 2022] were holdover actions; 2986 Briggs LLC v. Evans, 74 Misc 3d 1224(A) [Civ Ct, Bronx County 2022] was a licensee proceeding; Actie v. Gregory, 74 Misc 3d 1213[A] [Civ Ct, Kings County 2022] involved a sublessee where the primary tenant vacated; Karan Realty Assocs. LLC v. Perez, 75 Misc 3d 499 [Civ Ct, Queens County 2022] involved a former superintendent who had no obligation to pay rent. Notably, courts have found that upon a petitioner's request, due process mandates the court to conduct a hearing challenging the ERAP stay. Here, Petitioner neither sought a hearing nor has Petitioner provided the court with a sufficient basis upon which to examine the stay.
Section 5 of ERAP sets forth the factors to determine eligibility and provides:
A household, regardless of immigration status, shall be eligible for emergency rental assistance, or both rental assistance and utility assistance. Such household shall be eligible if it
(i) is a tenant or occupant obligated to pay rent in theirprimary residence in the state of New York, including both tenants and occupants of dwelling units and manufactured home tenants, provided however that occupants of federal or state funded subsidized public housing authorities or other federal or state funded subsided housing that limits the household's share of the rent to a set percentage of income shall only be legible for the extent that funds are remaining after serving all other eligible populations;
(ii) includes an individual who has qualified for unemployment or experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due, directly or indirectly, to the COVID-19 outbreak;
(iii) demonstrates a risk of experiencing homelessness or housing instability and
(iv) has a household income at or below 80% of the area median income, adjusted for household size.
The Petitioner's motion is denied. Here, other than Petitioner's conclusory assertions that ERAP will not pay the balance or that Respondent has failed to complete her application, Petitioner has not provided a basis upon which to grant the ultimate relief of vacating the stay. Petitioner cites to Harmony Mills West LLC v. Constantine, 75 Misc 3d 594 [Cohoes City Ct 2022] in which the court chose to permit a hearing to be held on allegations that the tenant's ERAP application was made in bad faith. However, here, Petitioner does not raise such allegations. Rather, Petitioner's motion is based upon a screenshot from the Office of Temporary and Disability Assistance (“OTDA”) website captured on March 17, 2022 which stated:
Due to a lack of available federal funding, Emergency Rental Assistance Program (ERAP) applications submitted after September 21, 2021 are not currently able to be paid for most residents in New York State Due to a court order, the ERAP program is accepting applications statewide. However, there is currently no federal funding available to provide assistance for new applicants in most areas of the State. Applications submitted and received after September 21, 2021 continue to be reviewed and paid in those areas of the State where the jurisdiction's allocution is not fully exhausted. (emphasis added)
Petitioner, relying on this statement, asserts that the funds have been exhausted. The important and relevant language in the OTDA update are the words “most residents”. There is no dispute that Respondent, a resident of Yonkers, does not have an application pending with the ERAP program administered directly by the OTDA. Rather, her application is with Y-ERAP, administered by the City of Yonkers Department of Planning and Development. The Department of Planning and Development subcontracted with non-profits to enroll eligible recipients and process their applications for benefits. See, Yonkers Emergency Rental Assistance Program: Round 2 (ERAP-2) Policies and Procedures at https://www.yonkersny.gov/home/showpublisheddocument/32660/63789849866670000. Counsel for Respondent contends that the City of Yonkers received two rounds of funding and has not, to date, exhausted its funds. Id.
In addition, and importantly, the maximum amount that Y-ERAP can pay is 18 months compared to the 15 months offered by the state. There is no argument at this time that Respondent would be ineligible for these funds. Further, Petitioner has failed to demonstrate that the potential unavailability of funding is a basis to vacate the stay when an individual has applied for Y-ERAP. Counsel for Respondent represents that she has applied, and as such the stay remains in effect. Accordingly, the Court declines to vacate the stay on the Petitioner's conclusory assertions that Respondent will not receive any funds from ERAP.
The Petitioner bears the burden of proof to establish that the application is not being pursued in good faith and has failed to meet this burden. Counsel for Respondent alleged that Respondent has submitted her application and is awaiting the next step of the process, assignment to a case manager. Counsel further argued that until the agency assigns a case worker to Respondent, there is nothing further for her to do. Petitioner did rebut these allegations. Accordingly, that branch of the motion which sought to vacate the stay, or a hearing based on Respondent's bad faith is denied without prejudice to renew upon a proper showing.
Finally, Petitioner contends that the court has the inherent authority to lift the ERAP stay in this case prior to a final determination of a pending ERAP application. Petitioner cites to the Court of Appeals decision in People v. Ryan for the proposition that the primary function of the court is to exercise its discretion in declining to enforce statutory language where doing so would “cause inconvenience, hardship, injustice, or mischief, or lead to absurdity.” 274 NY 149, 152 (1937). Petitioner also cites to the recent decision of the Suffolk County District Court, in which the court, following a hearing, and considering Petitioner's refusal to accept ERAP funding and refusal to participate in the tenant's application, vacated the ERAP stay. Kristiansen v. Serating, 75 Misc 3d 331 [Suffolk Dist. Ct 2022]. Here, while counsel for Petitioner alleged that Petitioner “does not intend to accept the ERAP funds.” (Petitioner's Memorandum in Support p. 6), unlike Kristinansen, the Petitioner's affidavit here makes no reference to its intention or outright refusal to participate in ERAP.
“Once a warrant of eviction has been executed the summary proceeding is terminated.” Matter of Sweet v. Sanella, 46 AD2d 688, 689 (2d Dept 1974). Were the court to grant the Petitioner's motion to vacate the stay the matter proceeding to a judgment and warrant without any determination on the Respondent's ERAP application. As noted by the Petitioner, the Court of Appeals instructs that it is a primary function of the courts to exercise its discretion in declining to enforce statutory language where doing so would “cause inconvenience, hardship, injustice, or mischief, or lead to absurdity.” People v. Ryan, 274 NY 149, 152 . The Court stated
In the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to ‘defeat the general purpose and manifest policy intended to be promoted’ all part of the act must be read and construed together for the purpose of determining the legislative intent, and, if the statute is ambiguous and two constructions can be given, the one must be adopted which will not cause objectionable results or cause inconvenience, hardship, injustice, or mischief, or lead to absurdity. Id.
The clear legislative intent of the COVID-19 Emergency Rental Assistance Program (“ERAP”) is to “extend and modify protections necessary to allow New Yorkers to stay in their homes and provide landlords with funding for unpaid rent for tenants that have experienced financial hardship due to the COVID-19 pandemic.” L. 2021, ch. 417. An order vacating the stay upon the facts in the above-entitled proceeding would be against the spirit and purpose of the act. Especially here, where the Petitioner neither waives its right to payments under ERAP nor expressly stated its refusal to participate.
Thus, for the foregoing reasons, the Petitioner's motion to vacate the stay is denied without prejudice and the Petitioner is cautioned that once the summary proceeding terminates, it cannot be restored for the entry of a judgment awarding arrears. 1250 LLC v. Augustin, 52 Misc 3d 135(A) (App. Term 2d Dept. 2016).
Karen N. Best, J.
Response sent, thank you
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Docket No: Index No. LT-0377-20
Decided: August 03, 2022
Court: City Court, New York,
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