Youngstar Irrevocable Trust, Appellant, v. Susan Ann Mora Paetz, Respondent. (2023)

ORDERED that the final judgment is affirmed, without costs.

In this holdover proceeding, landlord sought possession of a house after service upon tenant of a 90-day notice to quit. In the petition, verified in March 2022, landlord alleged that landlord was "not willing to participate in the creation of any leasehold, irrespective of potentially receiving any monies from the respondent or any governmental agency" and sought use and occupancy. In August 2021, before this proceeding was commenced, as the result of a prior proceeding between the parties that was subsequently dismissed, tenant submitted an application with the COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 3 [3], as amended by L 2021, ch 417, § 2, part A, § 1). In April 2022, tenant moved to dismiss this proceeding as prohibited while tenant's ERAP application was pending (see L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as amended by L 2021, ch 417, § 2, part A, § 4). In an order entered May 2, 2022, the Justice Court granted tenant's motion and, in a final judgment entered the same date, the petition was dismissed.

The relevant section of ERAP provides, in pertinent part, "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" (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as amended by L 2021, ch 417, § 2, part A, § 4). Contrary to landlord's arguments regarding the applicability of the ERAP statute to this holdover proceeding, the statute plainly prohibited the commencement of this proceeding while tenant's ERAP application was pending. Landlord's remaining arguments were raised for the first time on appeal and are not properly before this court (see Fusco v City of New York, 71 AD3d 1083 [2010]).

Accordingly, the final judgment is affirmed.

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: May 11, 2023