Joute v. Hinds

Hannah Cohen, J.

Hannah Cohen, J.

Recitation, as required by CPLR 2219(a), of the papers considered in review of petitioner's motion seeking an order to vacate a stay based upon an application for ERAP, and upon such lifting executing upon the warrant of evicition and ensuing opposition and reply.

Papers Numbered

Motion 1

Opposition 2

Reply 3

Upon the foregoing cited papers, the Decision and Order on these motions are as follows:

Petitioner commenced this holdover proceeding seeking possession of the premises on or about September 2019. The case first appeared on the courts calendar on September 26, 2019 and was adjourned to October 25, 2019 for all purposes. On October 25, 2019 Takecia Long appeared and agreed to a final judgment of possession, warrant to issued forthwith and execution stayed through January 31, 2020 for respondent to vacate the premises. Respondent acknowledged owing arrears of $11, 000 through October 31, 2019. In consideration of the vacatur, petitioner agreed to waive past arrears and future use and occupancy through January 31, 2020. On December 3, 2019 a judgment after inquest was entered against Orville Hinds and John and Jane Doe. On January 16, 2020 respondent Takecia Long sought an order to show cause requesting additional time to find an new residence. By order dated January 26, 2020 the court stayed the warrant through February 29, 2020 provided respondent paid $2, 200 by February 10, 2020. On February 21, 2020 respondent Takecia Long again sought by order to show cause an extension to vacate. By order dated March 3, 2020 the court again stayed the warrant through March 31, 2020 provided respondent paid $2, 200 by March 5, 2020. On March 17, 2020 the court closed due to the Coved-19 health pandemic. On February 24, 2021 respondent filed a hardship declaration with the court which stayed the proceeding through January 15, 2022. In March 2022, petitioner by motion sought to execute upon the warrant. Respondents appeared with counsel and filed an Emergency Rental Assistance Program application on March 21, 2022 which stayed this proceeding. On April 19, 2022 petitioner filed the herein motion to vacate the ERAP stay asserting that the premises is located in a one or two family home, that respondents already have a judgment of possession against them and respondents do not qualify for the ERAP stay as rent was not sought and is not sought, and that any application under the ERAP program was fraudulent as both respondents have and continue to be gainfully employed. Petitioner argues that as the court placed the matter on the administrative ERAP calendar, which places a stay of the proceedings, the court has the inherent power, as have many other courts have found to modify, vacate such decrees or orders where continued enforcement of the injunctive process is inequitable, oppressive and unjust or in contravention of the policy of the law (See Dictograph Products Inc., v Empire State Hearing Aid Bureau Inc., 4 A.D.2d 508 [1st Dept 1957]).

Respondents oppose the motion and argue the following: (1) that petitioner failed to serve the Attorney General pursuant to Executive Law 71(3) and CPLR 1012(B)(1) and therefore cannot challenge the constitutionality of the ERAP statute; (2) the court lacks subject matter jurisdiction to enter a declaratory judgment; and (3) equitable considerations mandate a stay until an administrative determination is made. Respondents also assert in affidavits, their financial hardships. Petitioner in reply reiterates that this is a holdover proceeding and that the last and only use and occupancy paid by the respondents was in April 2020 and respondents have remained in possession an additional two and half years beyond the vacatur date. Petitioner by affidavit asserts a financial hardship in having to house respondents for three years without any compensation.

Respondent's argument that the court must address the constitutionality of a statute in order to determine provisions of a statute is incorrect. As noted extensively in the holding in 2986 Briggs LLC v Robert Evans; J Doe No.1, J. Doe #2, NY Slip Op 50215(U) [Civ Ct Bronx Co 2022] Executive Law § 71 and CPLR 1012(b) does not require service upon the Attorney General's office, as the notice is suggestive in nature and not mandatory.

As to the courts jurisdiction, 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 Xo 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 A.D.2d 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 N.Y.2d 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.

Here, petitioner has not sought use or occupancy in the original petition, and in fact waived past arrears and future use and occupancy pursuant to the 2019 stipulation. Any approval by the ERAP program would not preserve any tenancy as petitioner already has a judgment and warrant against the respondents in this unregulated premises.

Courts have adjudicated 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).

Furthermore, to allow individuals in an unregulated tenancy, the benefit of a stay provision of ERAP would be futile and would lead to an absurd result, not contemplated by the statute. (See Hibertz v City of New York, 64 Misc.3d 697 [Supreme Ct, Kings Co 2019) (Although statutes will ordinarily be accorded their plain meaning, courts should construe then to avoid, objectionable or absurd consequences). When constructing a statute, the court must conclude that the legislature deliberately placed wording to serve its intended purpose (See Rodriguez v Perales, 86 N.Y.2d 361 [1955]; Bitzarkis v Evans, 2021 NY Slip Op 21280 [Civil Ct Kings Co November 2021]). The circumstances herein differ from the holding in Sea Park East LP v Foster, 74 Misc.3d 213 [Civ Ct Kings Co 2021] where this court found respondent, a rent stabilized tenant's second application for ERAP to satisfy rent arrears, stayed the proceeding as respondent mistakenly did not apply for the full amount of the program and was entitled to the protections of the ERAP stay while her application as pending. Herein, the court must interpret the ERAP statute in a different light, as an absurd result, is certainly not contemplated by the legislature. (See Hibert v City of New York, 64 Misc.3d 697 [S.C. Kings Co April 11, 2019] (statutes will ordinarily be accorded their plain meaning however courts should construe them to avoid objectionable, unreasonable or absurd results); Maiello v City of New York, 103 Misc.2d 1064 [Civ Ct Queens Co April 24, 1980] (Court need not follow the literal word of a statute where to do so would produce a result that legislature clearly did not intend)]. Surely the legislature did not intend for individuals who have no rental obligation to have the benefit of stay pending their request for funds to pay an amount, that was not and is not sought. The ERAP program was intended to assistant lawful tenants in remaining in their homes by assisting them in their financial obligations, it was not intended to shield individuals whose tenancies have already been terminated and for them to remain at a dwelling indefinitely.

Based upon the particular facts enumerate above, petitioners motion to vacate the ERAP stay is hereby granted. Petitioner's motion to execute upon the warrant is granted as respondents were to vacate the premises by January 30, 2020 and have had the benefit of an additional two and a half years to vacate. Warrant to issue forthwith upon service of a marshals notice.

This constitutes the decision and order of this court.