Skip to main content

Marat Leshchinsky, Petitioner v. Hopelyn Lutula Kalawe Lutula, Respondents. John Doe and Jane Doe Respondent-Undertenant(s). (2022)

Civil Court, City of New York.

Marat Leshchinsky, Petitioner v. Hopelyn Lutula Kalawe Lutula, Respondents. John Doe and Jane Doe Respondent-Undertenant(s).

Index No. LT No. 31276-21

Decided: November 21, 2022

Recitation, as required by CPLR 2219(a), of the papers considered in the review of petitioners motion to vacate the ERAP stay and to proceed to trial.



Notice of Motion1

Upon the foregoing cited papers, the Decision and Order on this motion is as follows:

Petitioner Marat Leshchinsky commenced this nonpayment proceeding against Hopelyn Lutula and Kalawe Lutula seeking rental arrears on or about March 2021 seeking rental arrears of a balance of $848 from May 2020, June 2020 balance of $1,169 and $986 per month form July 2020 through January 2021. Petitioner by motion filed in August 2022 seeks to restore the case to the court's calendar and to vacate the ERAP stay based upon the particular facts of this case. The court scheduled the motion to November 10, 2022 at which time respondents failed to appear and the motion was marked submitted. Subsequently on 11/14/22 respondent filed an order to show cause returnable 11/19/22. Respondent failed to appear on 11/19/22 and the order to show cause was denied. The court hereby issues the following decision on petitioner's motion to vacate the ERAP stay.

Petitioner argues that the ERAP stay should be lifted as the ERAP stay should not apply to the facts herein as respondent already receives a rental subsidy pursuant to DHPD Section 8. Petitioner in support quotes the language on the OTDA website which states as follows:

" Applications from subsidized housing tenants whose rent is limited to a certain percentage of income (including public housing, section * and FHEPS) are not currently able to be paid. State law requires that these applications be paid after all other eligible applicants have been reviewed and paid. Therefore, at this time, non of the subsidized housing applications can be paid regardless of the date their application was submitted. Residents of public housing are urged to contain their public housing authority to determine in their rent can be adjusted retroactively based on a previous change in circumstances, including a reduction in income."

Petitioner notes this was the language posted as of July 21, 2022. Petitioner argues that this indefinite hold on these types of applications do not mandate a stay per ERAP. Petitioner argues that any application in which OTDA will not act upon, does not trigger the automatic stay as the indefinite delay is highly prejudicial and unjust. In support petitioner submits an affidavit from the petitioner indicating that she has made several phone calls to ERAP who have advised her that they will not pay ERAP funds on a subsidized rental household application. Petitioner avers that currently what is owed through August 2022 is $22,927 and attaches a breakdown indicating no payments have been made since March 2020. Petitioner also provides documentation that in June 2021 she received notice that an ERAP application was filed by the respondent. Petitioner also shows documentation that respondent's HPD share of the rent changed to $859 effective November 2020 and again respondent's share was changed to $659 in November 2021 and $459 for December 2021 through the current month and that respondent has reported her income correctly to DHPD throughout this proceeding.

Petitioner also argues that the automatic stay violates petitioner's due process rights similar to the findings in Chrysafis v Marks , Sup Ct., U.S., S.Ct., L.Ed.2d 2021 WL 3560766 (8-12-21) and would be unjust in light of the particular facts herein.

The legislature enacted a statute to distribute funds to pay rental arrears known as the COVID-19 Emergency Rental Assistance Program ("ERAP"), codified at L. 2021, c.56, part BB, amended by L. 2021, c 417, Part A. Section 8 of subpart A of part CC of chapter 56 of the laws of 2021 which states:

"Except as provided in section nine-a of this act, eviction proceedings for a holdover or expired lease, or non-payment of rent or utilities that would be eligible for coverage under this program shall not be commenced against a household who has applied for this program or any local program administering federal emergency rental assistance program funds unless or until a determination of ineligibility is made. Except as provided in section nine-a of this act, in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claims be the petitioner, all proceedings shall be stayed pending a determination of eligibility."

The plain language of the statute indicates that any pending ERAP application stays a proceedings until an eligibility determination is made. However, the court has inherent authority to determine eligibility for purposes of the stay, and any concerns when facts indicate a lack of fairness, credibility, fraud or bad faith. (See Iisdoro v Team Properties LLC., 2021 NY Slip Op 32626[U] [NY Sup Ct NY Co 2021]; 255 Skyline Drive Ventures v Ryant [L & T 50014-20 [Civ Ct Richmond Co 2021]; Harbor Tech LLC v Correa, 73 Misc 3d 1211[A] [Civ Ct Kings co 2021]; Grevitch v Robinson L & T 72639-18 [Civ Ct Kings Co 2022]; Sea Park LP v Foster, 74 Misc 3d 213 [Civ Ct Kings co 2021]; 560-566 Hudson LLC v Hillman, NY Slip Op 30718(U) [Civ Ct NY co 2022]; 204 W. 55th St LLC v Mackler, NY Slip Op 32901(u) [Civ Ct NY Co]; Kristiansen v Serating NY Slip Op 22097 [NY Dist CT Suffolk Co 2022; Zheng v Guiseppone, 74 Misc 3d 1231[A] [Richmond Co Civ Ct 2022]; Papandrea-Zavaglia v Arroyave, WL 1098889 [Civ Ct Kings Co 2022]). The court has inherent power, and indeed responsibility, to the administration of justice, to control their calendars and to supervise the course of litigation before them. See Grisi v Shainswit, 199 AD2d 418 [AD 1st Dept 1986]).

The court is aware that the legislature in enacting laws determines the public policy of a state and undoubtedly enacted the provisions of the COVED-19 Emergency Rental Assistance Program in order to meet the challenges of tenants and lawful occupants in remaining in their homes while attempting to meet their financial obligations in paying rent during and through the pandemic period. It is the courts role to interpret the laws and give appropriate effect to the legislative intent while ensuring the rights of all individuals. (See Campaign for Fiscal Equity v State of New York, 100 NY2d 893 [2003]). Previously in the case of Chrysafis v Marks, Sup Ct., U.S., S.Ct., L.Ed.2d 2021 WL 3560766 (8-12-21) the United Stated Supreme Court found that the New York statute allowing a tenant's ability to self certify financial hardship which stayed a proceeding, without the ability to challenge such a declaration in the court violated due process. This led the New York State legislature to revise the statute to permit a legal challenge to the Hardship declaration. Here, similarly, when filing an ERAP application, any person may file an ERAP application, which stays a proceeding until a determination is made, The mere act of filing the application, regardless of whether the person is a tenant, lawful occupant, squatter, family member, guest, licensee, former employee, would conceivably stay the proceeding. The statute had no mechanism if the application was not completed timely, and provides no time frame for a decision, evoking a stay of indefinite stature. The person filing the application evokes the automatic stay even if such application was not made in good faith or where rent or use and occupancy is not sought. These concerns are similar to the concerns raised in Chrysafis, supra which barred one party from participating and engaging in the process.

The court is also mindful that in appropriate circumstances, the court has the authority to lift the ERAP stay (See Abuelafiya v Orena, 73 Misc 3d 576 [Dist Ct 3rd Dist Suffolk co 2021] where court found it had inherent authority by statute to determine a households eligibility under ERAP and found the respondents did not qualify as they were not experiencing housing instability as they owned another home; Actie v Gregory, 2022 NY Slip Op 501117[U] [Civ Ct Kings Co 2022] where court vacated the ERAP stay as petitioner sought to recover possession of the premises in a four or less unit building, for himself and the use of his family. The court went on to opine that an approval of an ERAP application would not result in the preservation of creation of a tenancy. See also 2986 Briggs LLC v Evans, 2022 NY Slip Op 50215(U) [Civil Ct, Bronx County 2022] (where the court found an occupant licensee does not owe "rent" as contemplated by the ERAP statute and was therefore not eligible for the stay; Kelly v Doe, 2022 NY Slip Op 22077 [Civil Ct Kings Co 2022] where court found alleged squatters were presumably not tenants entitled to an ERAP stay as there was no "rent" sought or owed); Ami v Ronen, 2022 NY Slip Op 22098 [ Civ Ct Kings Co] (where court found landlord was permitted to proceed with eviction despite possible success in tenant's ERAP application in a two family home); Karen Realty Assoc LLC v Perez, NY Slip Op 22093 [Civ Ct Queens Co 2022] (where court found lifting of ERAP stay appropriate as petitioner would not accept ERAP funds and such funds would not create a tenancy); US Bank Trust NA v Alton, NY Slip Op 22051[ Justice Ct Dutchess Co 2022] (where court found ERAP did not apply to individuals who have no obligation to pay rent); Bay Part Two- LLC v Pearson, 2022 NY Slip Op 22346 [Civil Court Kings Co 2022](court vacated ERAP stay in non payment proceeding where respondent receives Section 8) .

Although statutes will ordinarily be accorded their plain meaning, courts should construe then to avoid, objectionable or absurd consequences(See Hibertz v City of New York, 64 Misc 3d 697 [Supreme Ct, Kings Co 2019) . When constructing a statute, the court must conclude that the legislature deliberately placed wording to serve its intended purpose (See Rodriguez v Perales, 86 NY2d 361 [1955]; Bitzarkis v Evans, 2021 NY Slip Op 21280 [Civil Ct Kings Co November 2021]).

Herein respondent's ERAP application was filed 18 months ago and has been languishing with OTDA as respondent already receives a subsidy and therefore her application will only be considered after everyone else's application is reviewed and paid. The court notes that petitioner quotes language from the OTDA website in July 2022, said language remains current on its website despite OTDA having received additional funding to process additional applications in September 2022.

The court notes that in previous cases such as Sea Park East L.P. v Foster, 74 Misc 3d 213 [Civil Ct Kings Co 2021] and Mason v Doe, 75 Misc 3d 1210[A] [Civil Ct King Co 2022] where this court declined to vacate the ERAP stays in a non payment proceedings noting that there was a likelihood that respondents qualified for ERAP and would receive some funds to assist in preserving their tenancy. Similarly, in Robot LLC v Matos, 75 Misc 3d 1211(a) [Civil Court Bronx Co 2002] (court declined to vacate ERAP stay where application pending for almost one year for respondent who receives section 8 subsidy) and 14 N. Highstreet LLC v Clowney, 76 Misc 3d 768 [Civil court Mount Vernon 2022](where court declines to vacate ERAP stay for section 8 recipient as application was not futile) have declined to vacate the ERAP stays with regard to subsidized tenancies The court respectfully disagrees with the above two cases and notes that as the time passes with the respondent's application lingering, the prejudice to petitioner outweighs the benefit of waiting for a possible outcome on a filed ERAP application (See Silverstein v Huebener 2022 WL 1243191 [NY Civ Ct ](when the equities of an ERAP application are so out of balance as to warrant an exception to the statute, courts have vacated an ERAP stay) and the likelihood of any payments by OTDA diminishes. Here such a situation exists. Respondent's application has lingered, unaddressed for 18 months, the court notes the significant prejudice to the petitioner in light of OTDA's statement that applications such as respondents "are not currently able to be paid." Said determination by OTDA mandates that any ERAP stay is hereby vacated.

The ERAP stay is hereby lifted, petitioner's motion is granted and the case is restored to the court's calendar to December 12, 2022 at 9:30 am, part H, rm 507 for all purposes.

This constitutes the decision and order of the court.

Dated: November 21, 2022

Brooklyn, New York

Hannah Cohen, J.H.C.

Hannah Cohen, J.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law
Marat Leshchinsky, Petitioner v. Hopelyn Lutula Kalawe Lutula, Respondents. John Doe and Jane Doe Respondent-Undertenant(s). (2022)

Docket No: Index No. LT No. 31276-21

Decided: November 21, 2022

Court: Civil Court, City of New York.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard