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HOMEWELL REALTY CORP., Petitioner, v. Jessica Crespo ROJAS, Respondent.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion to issue and execute upon the warrant and the hearing had on respondent's defense:
All motion papers referenced in 7/14/22 Decision/Order recitation 1
Post-Hearing Memorandum (Respondent) 2 (NYSCEF No.11)
Letter Brief (Petitioner) 3
Affirmation in Reply (Respondent) 4 (NYSCEF #12)
Upon the foregoing cited papers, the decision and order on petitioner's motion to issue and execute upon the warrant on respondent's defense of acceptance of Emergency Rental Assistance Program (ERAP) funds is as follows:
Petitioner moved to issue and execute upon a warrant of eviction in this holdover proceeding. The parties, both represented by counsel, executed a stipulation on March 3, 2020, whereby petitioner was granted a judgment of possession against respondent, with a warrant to issue and execution of the warrant stayed through May 31, 2020.1 The COVID-19 emergency led to a delay in the issuance of the warrant. By Decision/Order dated July 14, 2022, the court granted petitioner's motion to the extent of permitting issuance of the warrant forthwith. Before ultimately disposing of petitioner's motion to execute upon the warrant, the court set respondent's defense of acceptance of ERAP funds down for a hearing. The hearing was conducted on September 9, 2022 and October 5, 2022. The court permitted submission of post-hearing briefs by October 26, 2022. Respondent's attorneys submitted a brief on NYSCEF on October 26, 2022. Petitioner's attorney submitted his letter brief by email on October 27, 2022. After the court heard from the attorneys for the respective parties on the record on October 28, 2022, the court accepted the late filing of petitioner's brief but permitted a reply by November 4, 2022. After the reply was filed to NYSCEF on November 4, 2022, the court reserved decision.
Respondents called no witness on their defense. Instead, the parties moved into evidence (as joint Exhibit 1) subpoenaed certified records from the New York State Office of Temporary and Disability Assistance (OTDA) related to respondent's ERAP application.
Petitioner then called Joyce Cai as its sole witness. Ms. Cai testified that she is the property manager for Homewell Realty Corp. She testified that she is in charge of operational aspects of the company and that she handles lease renewals. She also explained that she handles deposits of checks, cash, and money orders for Homewell.
Ms. Cai next testified about petitioner's Exhibit 1, a rent breakdown for respondent. She explained that she input the numbers in the breakdown. Over respondent's objection, petitioner's Exhibit 1 was admitted. Thereafter, Ms. Cai testified about petitioner's Exhibit 2, a copy of the ERAP check from OTDA in the amount of $22,500.00. She explained that she received the check in January 2022. The check came via regular mail. After it was delivered, she opened it and saw that it was issued for respondent. She testified that she made a copy of the check, put it in an envelope, and addressed it to the state taxation department in Albany. She then put it in a mailbox on the same date. She testified that the envelope was not returned. Petitioner's Exhibit 2 was admitted without objection. Ms. Cai also testified that she did not give OTDA information for respondent's ERAP application.
On cross-examination, Ms. Cai testified to the following: that she was the sole person handling rent collection for petitioner; that she received the ERAP check; that she mailed the ERAP check back; and that no one else touched the [ERAP] check.
After Ms. Cai's testimony on September 9, 2022, respondent's attorneys requested an adjournment for an OTDA witness to be subpoenaed for rebuttal purposes. Over petitioner's attorney's objection, the hearing was adjourned. On the second date of the hearing, October 5, 2022, respondent did not call any rebuttal witness. The court took judicial notice of an affidavit from Anthony Hu (petitioner's agent) dated July 12, 2022, which had been submitted on petitioner's underlying motion. Petitioner called Ms. Cai back to testify about the affidavit. Ms. Cai testified that she had consulted Mr. Hu about the ERAP check and that he was with her when the check (addressed to the state taxation department) was placed in the mailbox. Upon the conclusion of Ms. Cai's testimony, the hearing ended.
As noted in the court's July 12, 2022 Decision/Order, pursuant to L 2021, ch 56, § 1, Part BB, § 1, Subpart A, Sec 1, § 9(2)(d), as amended by L 2021, ch 417, Part A, Sec. 5, “[a]cceptance of payment for rent or rental arrears from this program [ERAP] shall constitute an agreement by the recipient landlord or property owner (iv) not to evict for reason of expired lease or holdover tenancy any household on behalf of whom rental assistance payment is received for 12 months after the first rental assistance payment is received[.]” The court previously observed that it interprets the 12-month statutory eviction restraint to connote a stay on execution, rather than a basis for dismissal. See e.g. Park Cent. I LLC v. Price, 2022 NY Slip Op 31909[U] [Civ Ct, Bronx County 2022]; Harlem Congregations for Community Improvement, Inc. v. Swindell, 76 Misc 3d 487, 491 [Civ Ct, NY County 2022]. After considering the hearing testimony and evidence, the court finds that petitioner accepted the ERAP funds approved for respondent and that respondent is therefore entitled to a stay of execution of the warrant through January 14, 2023, which is 12 months after the date of the ERAP check. See L 2021, ch 56, § 1, Part BB, § 1, Subpart A, Sec 1, § 9(2)(d)(iv), as amended.
There is no factual dispute that respondent was approved for ERAP assistance nor that a check for the amount of the approval ($22,500.00) was issued and sent to petitioner.2 While there is no record of the funds being deposited by petitioner, the statute merely refers to “acceptance of payment.” Ms. Cai's testimony about the return of the check was not credible. She first testified that she was solely responsible for the return of the check; only upon being confronted with Mr. Hu's affidavit, which states that he was responsible for mailing it back, did Ms. Cai amend her prior testimony to include his involvement with its return. Additionally, petitioner did not introduce any documentary evidence corroborating the testimony about the return mailing. While the testimony of a witness from OTDA would no doubt have shed light on its procedures, the court does not find that the lack of rebuttal testimony shifted the burden on the defense to respondent, as the acceptance of the funds was not credibly refuted by petitioner.
To the extent that petitioner seeks to withdraw its consent to the entry of the OTDA records into evidence, the court denies this request. The OTDA records were admitted as a joint exhibit and petitioner did not reserve its right to withdraw its consent to their admission into evidence when they were admitted.
As to petitioner's request that the court make a missing witness inference against respondent for the failure of an OTDA witness to testify, the court notes that the inference is applicable only where “(1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the ‘control’ of the party against whom the charge is sought, such that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party.” DeVito v. Feliciano, 22 NY3d 159, 165 . While OTDA was subpoenaed by respondent, the court does not find that the hearing record establishes that its witness was under respondent's control. There is no indication here that OTDA would be expected to testify in respondent's favor. Therefore, the court declines to make a missing witness inference against respondent. Moreover, even if petitioner had established its entitlement to such an inference, it would only exist to the extent “that the opposing evidence permits[.]” Nassau County Dept. of Social Servs. ex rel. Dante M. v. Denise J., 87 NY2d 73, 79 . Here, where petitioner's testimony about the return of the check lacked credibility, the “opposing evidence” would not defeat respondent's defense.
In accordance with the foregoing determinations, respondent has established that petitioner may not evict her for a period of 12 months after it accepted ERAP funds. Petitioner is granted leave to execute upon the warrant of eviction, provided that execution of the warrant is stayed through January 14, 2023. The EED shall be January 17, 2023. Upon default, execution is permitted, provided that there is prior service of a marshal's notice of eviction. See RPAPL 749(2). Pre-service of the marshal's notice shall be permitted on or after January 3, 2023. The parties are directed to pick up their exhibits within 35 days or they will be sent to the parties or destroyed at the court's discretion in accordance with DRP-185. This Decision/Order will be filed to NYSCEF.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
1. Respondent now has different counsel, The Legal Aid Society.
2. While Ms. Cai testified at the hearing that she did not provide any information to OTDA for respondent's ERAP application, the OTDA documents in evidence include “Application Details” pages showing that the owner information was “cleared” via a W9 tax form. Moreover, OTDA's ERAP website (FAQ #24 under “Other”) states that “[b]oth the tenant and landlord must complete certain parts of the ERAP application for eligibility to be determined and rental payments to be issued to landlords.” (https://otda.ny.programs/emergency-rental-assistance/faq.asp#faq-other-q24). See Price, 2022 NY Slip Op 31909[U], *4. Therefore, the court does not credit the testimony indicating that petitioner did not cooperate with the ERAP application.
Clinton J. Guthrie, J.
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Docket No: Index No. L & T 56662/19
Decided: November 22, 2022
Court: Civil Court, City of New York,
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