KIT REALTY, Petitioner(s), v. KUM GANG; XYZ Corp; “John” “Doe”; “Jane” “Doe”, Respondent(s).
In a notice of petition and petition filed on January 29, 2018, Petitioner commenced a holdover proceeding against Respondents (see Motion, Aff. of Poland, Ex. A). Thereafter, this proceeding developed a lengthy history during which Respondent Kum Gang (“Kum Gang”) made several bankruptcy filings, which automatically stayed the proceedings, but which were all ultimately terminated (see Motion, Poland Aff., Ex. C, E, F). After a bench trial conducted on June 28, 2018, August 29 and September 3, 2019, the court (U., J.) rendered a decision dated September 4, 2019 (“U. Decision”), which awarded Petitioner, among other things, a judgment of possession and warrant of eviction issued forthwith with no stay in execution. Judgment was entered against Respondent Kum Gang on September 5, 2019, and against Respondents XYZ Corp, “John” “Doe”, and “Jane” “Doe” on January 29, 2021. The warrant for the judgment against Kum Gang was issued on September 25, 2019 (“Kum Gang Warrant”). The warrant against XYZ Corp, “John” “Doe”, and “Jane” “Doe” was issued on February 4, 2021 (“XYZ Warrant”, together with the Kum Gang Warrant, the “Warrants”). In an order entered on January 8, 2021 (“F. Order”), the court (F., J.) granted on Respondent's default Petitioner's motion to enforce the judgments of possession. While the execution of the Warrants was stayed when Kum Gang again filed for bankruptcy after the F. Order, the stay was lifted by an order of the United States Bankruptcy Court dated April 30, 2021 (see Motion, Poland Aff. Ex. H). Petitioner now moved to amend the Warrants and execute on the Warrants. This Court conducted an oral argument and conference with both parties on August 17, 2021.
II. Discussion and Decision
The COVID-19 Emergency Protect Our Small Businesses Act of 2021 (“Act”) Part A, § 8[a][i] provides:
In any eviction proceeding in which an eviction warrant or judgment of possession or ejectment has been issued prior to the effective date of this act, but has not yet been executed as of the effective date of this act, including eviction proceedings filed on or before March 7, 2020, the court shall stay the execution of the warrant or judgment at least until the court has held a status conference with the parties.
Here, although Petitioner's immediate prior motion to enforce the judgments of possession was granted by Judge F. on January 8, 2021, the execution of the Warrants was stayed by Respondent Kum Gang's latest bankruptcy filing which was subsequently lifted by the United States Bankruptcy Court in April 2019. As a result, the Warrants are still outstanding and are yet to be executed. In any event, this Court conducted a conference with the parties on August 17, 2021. Act, Part A, § 8[a][ii] provides:
In any eviction proceeding, if the tenant provides a hardship declaration to the petitioner or plaintiff, the court, or an agent of the petitioner or plaintiff or the court, prior to the execution of the warrant or judgment, the execution shall be stayed until at least August 31, 2021.
In our instant matter, the judgments of possession were rendered and the Kum Gang Warrant was issued prior to the effective date of the Act. The XYZ Warrant, however, was not issued prior to the effective date of the Act. In cases where “an eviction warrant or judgment of possession or ejectment has not been issued, including eviction proceedings filed on or before March 7, 2020, if the tenant provides a hardship declaration to the petitioner or plaintiff, the court, or an agent of the petitioner or plaintiff or the court, the eviction proceeding shall be stayed until at least August 31, 2021” (Act, Part A, § 7).
Here, Kum Gang's Opposition to Petitioner's Motion included a hardship declaration, which was electronically filed with the court on June 2, 2021. Therefore, execution of the Warrants must be stayed until at least the expiration of the eviction stay, which is currently scheduled for August 31, 2021 (Act, Part A, §§ 7, 8[a][ii]). Although a warrant “that does not comply with the requirements of this section” may not be issued by the court (Act, Part A, § 8[c]) and may not be executed by an officer (Act, Part A, § 8[d]), this Court finds that because the U. Decision, which granted Petitioner judgments of possession, was rendered before the effective date of the Act, staying execution of the Kum Gang Warrant “until at least August 31, 2021” (Act, Part A, § 8[a][ii]), renders the Warrants compliant with the requirements of Act, Part A, § 8[a]. In addition, staying execution of the XYZ Warrant until August 31, 2021 complies with Act, Part A, § 7. Under such circumstances, the Warrants need not be amended as Petitioner requested. This Court notes that during oral argument, Petitioner's counsel requested an order permitting execution of the Warrants with a stay on execution until the expiration of the Act, which currently will be on August 31, 2021. Respondent's counsel did not raise any contrary arguments.
Accordingly, it is
ORDERED that Petitioner's Motion is partially granted in that Petitioner's motion to amend the Warrants is denied; and it is further
ORDERED that the eviction warrants issued on September 25, 2019 and on February 4, 2021 may be executed pursuant to Judge U.'s decision and order dated September 4, 2019; and it is further
ORDERED that execution of the Warrants is stayed until August 31, 2021, or such time as any future stays imposed by the Covid-19 Emergency Protect Our Small Businesses Act of 2021 or any relevant executive orders, are lifted, whichever is later.
This constitutes the court's Decision and Order.
Wendy Changyong Li, J.
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