653 LLC, Petitioner, v. Abner Rosa-Blanco & TENISHA CARDOVA & "JOHN DOE" & "JANE DOE," Respondents.
RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE PETITIONER TO VACATE THE ERAP STAY AND RESTORE THE PROCEEDING TO THE COURT'S CALENDAR: NYSCEF Documents No. 8, 12, 13 & 15.
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
RELEVANT FACTS AND PROCEDURAL POSTURE
For the purposes of the pending motion to vacate the ERAP 1 stay, the relevant facts are as follows: this is an illegal sublet holdover proceeding commenced by petition dated April 25, 2022. On or about June 14, 2022 the matter was placed on the court's ERAP administrative calendar because of a pending ERAP application. Only Tenisha Cardova (Cardova) has appeared. She is represented by counsel.
The petitioner now seeks an order vacating the ERAP stay arguing that the ERAP applicant (Cardova) is not its tenant, that she is not eligible for the program, and that petitioner will not accept ERAP funds, even if approved. (see NYSCEF Doc. 8 at pp. 14 and 17). Respondent opposes and argues that she meets the eligibility criteria as an "occupant obligated to pay rent," (see NYSCEF Doc. 12 at par. 13), as evidenced by the fact that she was provisionally approved. (see NYSCEF Doc. 13). In response, petitioner argues that its allusions to Cardova's eligibility ["no likelihood of approval"] refers to its own refusal to participate in the program. As such, petitioner argues there will never be a final approval. Petitioner points out there are differences between an "approval" and a "provisional approval," and that there are consequences for a landlord that refuses to participate in the program. (see NYSCEF Doc. 15 at par. 5).
The ERAP stay is an automatic statutory stay triggered by filing an application with OTDA.2 (see Harmony Mills West, LLC v Constantine, 75 Misc 3d 594, 595, 169 NYS3d 476 [City Ct, Cohoes 2022]). Just as the stay is triggered by an application, it is dissolved by a determination. (id. ["The stay remains in effect until OTDA determines the tenant's eligibility to receive payments under the ERAP program."]).
There is no need to discuss Cardova's eligibility. She has a provisional approval. That provisional approval is a "determination" since, under the ERAP statute, "[t]he tenant may use such provisional determination as an affirmative defense in any proceeding seeking a monetary judgment or eviction brought by a landlord for the non-payment of rent accrued during the same time period covered by the provisional payment for a period of twelve months from the determination of provisional eligibility." (see Park Tower South Company LLC v Simons, 75 Misc 3d 1067, 1071, 171 NYS3d 342 [Civ Ct, New York County 2022]; Awaly LLC v Pena, 75 Misc 3d 1227[A], *1, 2022 NY Slip Op 50673[U] [Civ Ct, Bronx County 2022] citing L 2021, ch 156, part BB, § 9  [d]) [emphasis added]; see also Buchbinder Tunick & Co. V Tax Appeals Tribunal of City of New York, 100 NY2d 389, 383, 74 NYS2d 61  (where language "is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used."); see also 517 West 212 St. LLC v Musik-Ayala, 58 Misc 3d 652, 657, 66 NYS3d 861 [Civ Ct, New York County 2017]).
As to the statutory stay, a provisional approval dissolves it just an approval where payment is made does. (see Park Tower South Company LLC v Simons, 75 Misc 3d at 1070). The court notes that nothing in the ERAP statute requires a landlord to participate in the program. (see Kristiansen v Serating, 75 Misc 3d 331, 333, 165 NYS3d 828 [Dist. Ct, Suffolk County 2022]; Harlem Congregation for Community Improvement v Swindell, 76 Misc 3d 487, 489, 174 Misc 3d 232 [Civ Ct, New York County 2022]). There are, of course, consequences for non-participation when an applicant is found eligible. Here, petitioner is well aware of the consequences for its non-participation and acknowledges them. However, petitioner's non-participation does not warrant a further stay of the proceeding. Indeed, this court finds that the stay expired by operation of law upon the provisional approval.
The court need not reach the parties' other arguments.
Consequently, the motion is granted, and the case is restored to the court's calendar for settlement or pre-trial conference on February 9, 2023 at 10:45 AM in-person.
This constitutes the Decision of the court. It will be posted to NYSCEF.
January 13, 2023
Bronx, New York
HON. SHORAB IBRAHIM
Judge, Housing Part I
1. ERAP is short for the Emergency Rental Assistance Program. (see L. 2021, c. 56, Part BB, Subpart A, § 8, as amended by L. 2021, c. 417, Part A, § 4).
2. OTDA is the Office of Temporary and Disability Assistance and is tasked with determining eligibility under the program.
Shorab Ibrahim, J.