EG Mt. Vernon Pres. v. Roberts

Nichelle A. Johnson, J.

Unpublished Opinion

Daniel J. Pomerantz, Esq. Novick, Edelstein & Pomerantz P.C. Attorneys for Petitioner

Michelle Sagiv, Esq. Legal Services of the Hudson Valley Attorneys for Respondent

Nichelle A. Johnson, J.

Petitioner commenced this nonpayment proceeding in September 2021 seeking rental arrears in the amount of $5,7575.00 for the period of March 2021 through August 2021. The subject premises are project-based Section 8, governed by HUD regulations. Petitioner served respondent with a fourteen-day rent demand.

The respondent applied for ERAP assistance on November 15, 2021. Over one year later, the ERAP application is still pending review. Under the COVID-19 Emergency Rental Assistance Program (ERAP) (Part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c 417), tenants may apply for rental assistance to satisfy their rental arrears. Once a tenant files an application, an automatic stay is imposed on nonpayment and holdover evictions pending the approval/rejection of the ERAP application (L.2021, c. 417, Part A, _4).

Petitioner now moves to vacate the ERAP stay.

Respondent opposes the motion.

In support of the motion to vacate the ERAP stay, petitioner's managing agent, Manuel Felix affirms that respondent owes $10,002.00 as of August 2022. A copy of the rental breakdown for the period of January 2022 through August 2022 is attached to the motion papers. Mr. Felix maintains that ERAP will not cover all the outstanding arrears and as such, the ERAP stay should be vacated.

Petitioner's counsel, Daniel Pomerantz, affirms that this Section 8 tenancy is governed by HUD. Counsel argues that keeping the ERAP stay in place would be futile since ERAP will not cover all of the rental arrears owed by the respondent. Counsel argues that the maximum payment that ERAP would pay would be 15 months, commencing March 2020. Counsel argues that the rent ledger demonstrates that the respondent owes for months above and beyond the ERAP covered period. Counsel further argues that under ERAP's most recent guidance, applications from subsidized housing tenants, which includes Section 8, are currently not able to be paid and the law requires that applications for tenants with Section 8 be paid after all other eligible applicants have been reviewed and paid. Accordingly, the petitioner argues that an ERAP stay is futile under these circumstances.

Respondent Roberts affirms that he has be residing in the subject premises for 13 years with his daughter. He states that his working hours were reduced during the pandemic, and as such, he suffered a financial hardship. In August 2022, he returned to full-time work. Mr. Robert maintains that during his tenancy he paid his rent monthly, but only started to fall behind on making monthly payments after a loss in some income. Respondent states that he reported his reduction in income to the building manager immediately, but it took some time to get it reduced. Once the rent portion was reduced, he was able to make the monthly payments. Respondent affirms that he became aware of the ERAP program in November 2021 and applied right away. He also states that he received a communication from ERAP on August 10, 2022, notifying him that his application was provisionally approved.

Respondent's counsel, Michelle Sagiv, argues that the clear language of the ERAP statute provides that all summary proceedings, except for nuisance proceedings, must be stayed pending a final determination of eligibility. Counsel further argues that at the time the respondent submitted the ERAP application in November 2021, he owed arrears in excess of $7,000, and his monthly rent was $965.00 per month. Following the submission of the application, respondent's monthly rent ranged from $965.00 to $823.00 per month. Counsel argues that based on the amount of respondent's monthly rent during the time his arrears accrued, the rental arrears of $10,002.00 alleged due and owing by petitioner would be covered by the ERAP program. Counsel further argues that respondent has tendered a payment in the amount of $1,600.00 in March 2022 and has continued to tender monthly rent to the landlord in May, June, July and August 2022. Accordingly, counsel argues that the respondent has not been prejudiced by the continued ERAP stay. Counsel further argues that if respondent owes rental arrears exceeding 15 months, counsel can assist respondent with applications to agencies to help with payment of the arrears balance owed. Counsel also argues that respondent's Section 8 tenancy does not render that application futile, as respondent's application has already been provisionally approved by ERAP. Counsel argues that petitioner's lack of participation in the ERAP program is preventing payments from being tendered to the landlord.

A copy of the provisional award letter is attached to respondent's opposition papers. The letter provides that the respondent has completed his portion of the application, but the landlord has not submitted the documentation necessary to receive payment. The letter further provides that the ERAP application is provisionally approved for a monthly rental obligation of "$965" for a maximum of 12 months to cover rental arrears and 3 months of future rent. The letter also states that if the landlord does not provide the necessary documents by August 1, 2022, the funds in the amount provisionally approved will no longer be held, and after 12 months, the maximum amounts may be deemed waived by your landlord/property owner.

In reply, petitioner is not contesting respondent's eligibility and makes no reference to the provisional letter submitted by respondent. Moreover, and significantly, Petitioner does not address respondent's pointing out that the Petitioner/landlord has failed to upload the required landlord information thereby obstructing a completed application.

In this regard, the court is offers the following it must take under advisement relative to the following ERAP guidelines:

23. What if a tenant has completed the application as needed, but the landlord has not provided their information? What if a landlord has completed the application, but the tenant has not provided their information?

Both the tenant and landlord must complete certain parts of the ERAP application to receive rental payments issued to landlords. (emphasis added)

If a tenant has been unable to get their landlord to provide needed information to complete an ERAP application, they should contact the designated local organization for outreach assistance. View the list of community-based organizations available to help tenants and landlords.

Tenants can also call the ERAP Call Center to obtain contact information for their local organization. Additionally, any landlords will be contacted at least three (3) times to let them know that additional information is needed based on the email/contact information provided by the tenant.

39. What happens if a landlord fails or refuses to provide the necessary information or documentation?

Where a landlord in a community participating in the State's ERAP program fails or refuses to provide information needed to make a rental arrears payment to the landlord on behalf of a tenant after reasonable efforts (including outreach) as provided for under State law, the amount of rental assistance that the landlord would have been paid is set aside for at least 180 days so that the landlord may submit the required information. If the landlord has not provided the needed information after 180 days from the tenant's determination of provisional eligibility, OTDA may reallocate the set-aside funds to serve other ERAP applicants, and the tenant may use the provisional determination of ERAP eligibility as an affirmative defense in any proceeding brought by the landlord during the subsequent year for a monetary judgment or an order of eviction based on the nonpayment of rent that would have been covered by the payment. After 12 months, the landlord is deemed to have waived the amount of rent that would have been covered by the payment.

For this reason, this Court opines that it does not get to the inquiry as to whether the application is futile as there is no completed application. Specifically, there remains a question that if the tenant was provisionally approved has the landlord's failure to upload the required information - thereby completing the application - caused the stalling of the payment as opposed to tenant's Section 8 status or even the statement that they are not going to be paid and they will be last considered? Moreover, this court opines, that the failure of the landlord to participate in the process - by completing the application where there is already a provisional approval - does not allow the court to get to the futility argument of the Section 8 status. Further, the fact that the tenant may owe more than the 15 months of rent that would be covered by ERAP and for which this court would be inclined to lift the stay, the court notes that there was information that the tenant "has been paying his monthly rent in good faith" so if that is the case then perhaps the tenant does not owe more than 15 months? So, it is clear the tenant is required to make ongoing payments of rent outside of the rent due and owing for the ERAP period.

Accordingly, the motion to lift the ERAP stay, at this time, on these facts, is denied. However, the parties should be clear that at the continuation appearance, if the Tenant cannot prove that he has been paying ongoing rent, this court may decide to lift the ERAP stay as to those amounts if they are not paid or there are no guarantee letters from the various assisting agencies submitted indicating that the money is forthcoming.

This constitutes the Decision and Order of this Court. The parties are instructed to come for a continuation conference on February 9, 2023 - 9:30 a.m.

The court considered the following papers on this motion: Notice of Motion, dated August 2, 2022; Affirmation in Support of Motion, dated August 4, 2022; Affidavit; Exh. Affirmation in Opposition, dated August 30, 2022; Affidavit in Opposition, dated August 30, 2022. Reply Affirmation, dated September 2, 2022.