LP v. Carol Sacks, "John Doe" and "Jane Doe," Respondents. (2023)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion

Papers Numbered/NYSCEF

Notice of Motion, Affirmation and Affidavits 1 Doc. No. 9-17, Doc. No. 18-32

Answering Affirmation and Affidavits 2 Doc. No. 33

Replying Affidavit and Affirmation3 Doc. No. 35-39

Procedural History

This is a holdover proceeding seeking the eviction of a Rent Stabilized leaseholder for the alleged refusal to give access. The subject premises are located at 98-01 67th Avenue, Apartment 14A, Forest Hills, NY 11374. The case was first calendared on March 2, 2020, and two weeks later the COVID-19 pandemic was declared.

In March 2021, respondent moved  ¹ to stay this proceeding pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act (EEFPA). The motion was granted, and the proceeding was stayed. The decision further directed that upon the end of the legislative stay, the case was to be transferred to the trial part. "After the lift of the stay [respondent] shall serve /file [her] answer within 10 days" See, May 5, 2021 Decision/Order (Hon. S. Jimenez).²

Upon the sunset of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (EEFPA) stay, petitioner moved to restore this case to the calendar. Petitioner's motion was granted. (Motion Seq. No. 1) On March 31, 2022, the case was transferred to Part X for trial and thereafter assigned to Part O. In Part O the matter was adjourned for motion practice.

Respondent filed two motions. (Motion Seq. No. 2 and No. 3) Respondent sought leave to file a "late answer" and to dismiss the holdover case under CPLR 3211(a)(7). Dismissal is based on the proposition that the notice of termination has been vitiated by petitioner's acceptance of ERAP funds and upon the execution of two lease renewals. In the alternative, respondent seeks to file a late answer pursuant to CPLR 3012(d) and deem the proposed answer served and filed.

There is no dispute that access to the apartment is needed to render repairs and remove violations issued pursuant to the Housing Maintenance Code. Both sides may want the same outcome. They both may want to have the conditions addressed and the violations removed. Respondent asserts that she is a disabled person who needs a walker and seeks a reasonable accommodation. Respondent states that when she accepted petitioner's offer to relocated to another apartment while the repairs were done, the offer was rescinded, and the needed repairs have not been done.

Petitioner argues that it has tried to work with respondent, that it has offered relocation, either temporarily or permanently, to another apartment while the repairs are being done and such offers have been refused. Petitioner argues that due to respondent's failure to give access pursuant to the Notice to Cure, petitioner was compelled to issue a Notice of Termination and now it seeks to evict respondent. Respondent denies that she has failed to work with petitioner.

An eviction does not help respondent and a dismissal does not help petitioner. The parties were encouraged to settle this matter and were unable to resolve this case.

Respondent's Motions, Opposition and Discussion

In October 2021, the New York State Emergency Rental Assistance Program (ERAP) emailed the petitioner informing it that respondent's ERAP application was approved. (NYSCEF Doc. No. 6) The ERAP funds were delivered to the petitioner. By operation of law, landlord's acceptance of ERAP constitutes landlord's agreement not to evict due to an expired lease or holdover tenancy for 12 months, L. 2021, c. 56, Part BB, Subpart A, § 9[2][d][iv]. In this case, however, the case was already commenced and during that one-year period litigation was continued, although a plain reading of the statute states that it should have been stayed.

The stay of the holdover proceeding would have run through October or November 2022, one year after acceptance of the ERAP funds. The stay associated with the acceptance of the funds would not be a basis to dismiss the holdover proceeding but would be a basis to stay the petitioner from pursuing an eviction. The transfer of this matter to the trial part, less than one year from the acceptance of ERAP funds, was inconsistent with the stay created by operation of law, but it would not support a dismissal of the case. See, Ben Ami v. Ronen 2023 NY Slip Op 50456(U)[App Term, 2d Dept, 2d, 11th & 13th Jud Dists April 28, 2023]

During the stays occasioned and implemented by the COVID-19 pandemic, petitioner renewed the stabilized lease on two occasions. The first Renewal Lease is dated April 14, 2020. Respondent accepted a one-year renewal on July 31, 2020, and petitioner approved the renewal on August 24, 2020. (NYSCEF Doc. No 23) The second Renewal Lease is dated April 20, 2021. Respondent accepted a one-year renewal on August 20, 2021, and petitioner executed upon the acceptance on August 26, 2021. (NYSCEF Doc. No 24)

Respondent argues that the lease renewals have effectively vitiated the termination notice. The vitiated termination notice would require the dismissal of this holdover proceeding. The last renewal shows that respondent's lease would have expired on August 31, 2022. Petitioner argues that the renewals were offered because it is required to do so in accordance with the Rent Stabilization Law. The lease renewals do not have any reservation or notations of the landlord's intent or rights or desire to continue with its litigation.

There is a split on this issue between the First and Second Department. The Second Department has determined that a renewal lease may vitiate a termination notice. See, 757 Miller Owners v. Smith, 2017 NYLJ Lexis 549 [Civ Ct. Kings County 2017], discussing that lease renewal where landlord did not expressly reserve rights under the pending litigation, the renewal vitiated the termination notice. Petitioner relies primarily on decisions from the First Department for the proposition that the renewal lease is a mere formality required by the Rent Stabilization Code. This is not supported by a reading of the cases in the Second Department.

The Second Department provides further guidance and examines the circumstances surrounding the alleged tender of a lease renewal during the pendency of a holdover. In the instant matter, the fully executed renewal leases did not state any language indicating rights reserved or otherwise. The lease renewals were delivered, accepted, and executed during the height of the COVID-19 pandemic and it would be reasonable to mark the end of the litigation. See, Ambassador Realty Co. v. Wachtel, 139 Misc 2d 965 [Civ Ct. Queens County 1988].

The analysis is further conferred In re Touloumis, 170 B.R. 825[United States Bankruptcy Court for the Southern District of New York 1994] "the landlord offered a renewal lease that was unconditional on its face, and it cannot now impose secret limitations or conditions. The renewal lease in this case does not contain any restrictions or conditions that would alert the tenant, or any third party, that was offered involuntarily and without the intent to renew the landlord-tenant relationship. Nor does the renewal lease state that in the event the tenant is ultimately evicted, the tenant will have no right to continue to occupy the premises. Under those circumstances, the landlord cannot attempt, through parol or other evidence, [**13] to deviate from the unconditional terms of the renewal lease." at 830.

Consistent with the Second Department, the facts here support the holding that the lease renewals without any language reserving petitioner's right to continue this litigation vitiates the predicate notice. These two lease renewals cannot be undone and require the dismissal of the case. Related Broadway Dev. LLC v Malo, 58 Misc 3d 154(A)[App. Term, 1st Dept 2018], Kew Gardens Assoc. v. Camacho, 3 Misc 3d 135(A)[App. Term, 2nd Dept 2nd & 11th Jud Dists 2004]

That part of respondent's motion seeking leave to file a "late answer" is academic and not adjudicated.

Accordingly, it is

ORDERED that respondent's motion, sequence no. 3, is granted to the extent that the petition is dismissed without prejudice, and it is

ORDERED the balance of motion sequence no. 3 and motion sequence no.2 are academic and not adjudicated as the case is dismissed.

This Decision/Order will be filed to NYSCEF.

This constitutes the Decision/Order of the Court.

Dated: May 25, 2023

Queens, New York

So Ordered,

ENEDINA PILAR SANCHEZ

Judge, Housing Court

FOOTNOTES

1.   The very first motion was not sequenced. It was filed before the case was converted to NYSCEF. The court has had to navigate through the physical and virtual file to clearly identify the sequence of the motions. Today the court addresses respondent's motion sequence no. 2 and no. 3.

2.   The May 21, 2021 Decision and Order could not have contemplated the amendments to ERAP law and implications upon the acceptance of funds as the ERAP statute was amended on September 1, 2021.

Enedina Pilar Sanchez, J.