2986 Briggs LLC v. Evans, 2022-50215

CourtNew York Civil Court
Writing for the CourtDiane E. Lutwak, HCJ
Docket NumberL & T Index 308118/21,2022-50215
Parties2986 Briggs LLC, Petitioner-Landlord, v. Robert Evans; "J. DOE #1"; "J. DOE #2", Respondent(s)-Occupant(s).
Decision Date22 March 2022

2986 Briggs LLC, Petitioner-Landlord,

Robert Evans; "J. DOE #1"; "J. DOE #2", Respondent(s)-Occupant(s).

No. 2022-50215

L & T Index No. 308118/21

Civil Court of the City of New York, Bronx County

March 22, 2022

Unpublished Opinion

Petitioner's Attorney:

Jayson Blau, Esq.

Respondent's Attorneys:

Ashley M. Thomas, Esq.

The Legal Aid Society, Bronx Neighborhood Office

Diane E. Lutwak, HCJ

Recitation, as required by CPLR Rule 2219(a), of the papers considered in determining Petitioner's Motion (seq #2) for an Order Vacating the "ERAP" Stay Under L. 2021, c. 56, Part BB, as amended by L. 2021, c. 417, Part A:

Papers / NYSCEF Doc #

Holdover Petition and Notice of Petition 1-2

"ERAP" Application Confirmation 8

Petitioner's Notice of Motion 16

Attorney's Affirmation in Support of Motion 17

Affidavit of Service of Motion on NYS Attorney General 18

Attorney's Affirmation in Opposition 19

Exhibits A-F in Opposition 20-25

Attorney's Affirmation in Reply 26

Exhibits A-B in Reply 27-28

For the reasons stated below, Petitioner's motion for an order vacating the stay of this proceeding pursuant to L. 2021, c. 56, Part BB, Subpart A, § 8, as amended by L. 2021, c. 417, Part A, § 4, is granted and the matter is set down for a virtual pre-trial conference on April 6, 2022 at 3:15 p.m.


This is a "licensee" eviction proceeding commenced against the occupants of the subject Rent Stabilized apartment following the death of the tenant of record, which Petitioner learned of from one of the occupants, Respondent Robert Evans [1]. Shortly after the petition was filed, on August 4, 2021, Respondent filed a "hardship declaration" pursuant to Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 ("CEEFPA"), on which he checked off boxes "A" and "B" to indicate both that he was experiencing a financial hardship and that vacating the premises and moving into new permanent housing would pose a significant health risk due to the COVID-19 pandemic. Respondent's filing of a hardship declaration stayed the proceeding initially through August 12, 2021, when CEEFPA, Part A was enjoined by the United States Supreme Court in Chrysafis v Marks (141 S.Ct. 2482, 210 L.Ed.2d 1006 [2021]), and then through January 15, 2022, under the CEEFPA successor statute, L. 2021, c. 417, Part C, Subpart A.

On January 21, 2022 Petitioner filed a motion seeking to restore the case to the court's calendar for trial. Respondent retained counsel who filed notice of Respondent's application to the New York State Office of Temporary and Disability Assistance (OTDA) for the COVID-19 Emergency Rent Assistance Program ("ERAP"), which was "under review". At a virtual appearance on February 7, 2022, Petitioner withdrew its motion and the case was adjourned to March 16, 2022 with a briefing schedule for Petitioner to file a new motion seeking to lift the automatic stay imposed by L. 2021, c. 56, Part BB, Subpart A, § 8, as amended by L. 2021, c. 417, Part A, § 4 [2] ("the ERAP Law").


Petitioner's motion is supported by the affirmation of its attorney, who argues that the ERAP stay should be lifted for two reasons. First, Petitioner argues that the stay imposed by the ERAP Law is an unconstitutional violation of Petitioner's due process rights under the Fifth and Fourteenth Amendments of the United States Constitution, both on its face and as applied to this case, for the same reasons that CEEFPA, Part A was found to be unconstitutional in Chrysafis v Marks. Just as CEEFPA, Part A authorized a stay of an eviction proceeding upon a respondent's self-certification of a COVID-19-related hardship, Petitioner argues, the ERAP Law authorizes a stay of an eviction proceeding upon a respondent's self-certification of eligibility for ERAP by simply filing an application with OTDA. Petitioner argues that ERAP eligibility is irrelevant to this holdover proceeding against someone whose license to reside in the premises expired upon the death of the tenant of record.

Second, alternatively, Petitioner argues that the Court has the authority to find as a matter of fact that a respondent is not eligible for ERAP funding or that a stay would be futile in a particular context, citing to Abuelafiya v Orena (73 Misc.3d 576, 155 N.Y.S.3d 715 [Dist Ct 3rd Dist Suffolk Co 2021]), and Actie v Gregory (2022 NY Misc. LEXIS 582, 2002 NY Slip Op 501117[U][Civ Ct Kings Co 2/18/22]). Petitioner argues that the ERAP stay is futile here because regardless of whether Respondent can pay use and occupancy, his license to live in this apartment expired upon the death of the tenant of record and he must vacate.

In opposition, Respondent's attorney argues first that the Court should not consider Petitioner's constitutional argument because the office of the New York State Attorney General (NYSAG) was not properly served. Petitioner's affidavit of service on the NYSAG (NYSCEF Doc. # 18) asserts service by "overnight mail" through the U.S. Postal Service at the Office of the Attorney General, Empire State Plaza, Justice Building, 2nd Floor, Albany, NY 12224. Respondent points to a page of the NYSAG's website, entitled "Notification of Constitutional Challenges to State Law", which provides an address on Liberty Street in Manhattan for service of notices and documents in cases arising in specified counties, including the Bronx, and an address in Albany for cases arising in other specified counties.

Second, Respondent argues that the ERAP Law is clear on its face as to the automatic stay of eviction proceedings upon submission of an ERAP application.

Third, regarding Petitioner's constitutional claim, aside from the notice issue, Respondent argues that New York statutes are presumed constitutional and it is a heavy burden to find otherwise. Respondent asks this Court to follow Harbor Tech LLC v Correa (73 Mis3d 1211[A], 154 N.Y.S.3d 411 [Civ Ct Kings Co 2021]), in which the Court granted the tenant's motion for a stay under ERAP and distinguished Chrysafis v Marks as raising different issues.

Respondent also cites to a series of other lower court decisions denying requests to vacate ERAP stays, some of which address the Chrysafis issue and some of which do not: Carousel Props v Valle (2022 NY Misc. LEXIS 750, 2022 NY Slip Op 50168[U][Dist Ct, 6th Dist, Suffolk Co 2/16/22]); 560-566 Hudson LLC v James David Hillman (L & T # 300446-21 [Civ Ct NY Co, 2/24/2022]); 204 W 55th St, LLC v Mackler (2021 NY Slip Op 32901[U][Civ Ct NY Co 12/2/21]); and 255 Skyline Drive Ventures LLC v Ryant (L & T # 50014-20 [Civ Ct Richmond Co, 10/13/21]).

Fourth, Respondent argues that his ERAP application should not be deemed "futile" because while Petitioner "made a blanket statement that they did not wish to accept the funding from ERAP", its petition seeks use and occupancy. Further, if ERAP funds are approved and Petitioner does accept them the ERAP Law protects Respondent from eviction for a year from the date of payment.

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