2986 Briggs LLC v. Evans
| Decision Date | 22 March 2022 |
| Docket Number | L & T Index No. 308118/21 |
| Citation | 74 Misc.3d 1224 (A),163 N.Y.S.3d 794 (Table) |
| Parties | 2986 BRIGGS LLC, Petitioner-Landlord, v. Robert EVANS; "J. Doe #1"; "J. Doe #2", Respondent(s)-Occupant(s). |
| Court | New York Civil Court |
Petitioner's Attorney: Jayson Blau, Esq., 171 East 163rd Street, Bronx, New York 10451, JBlauEsq@gmail.com, (347) 329-1146
Respondent's Attorneys: Ashley M. Thomas, Esq., The Legal Aid Society, Bronx Neighborhood Office, 260 East 161st Street, 7th Floor, Bronx, New York 10451, AMThomas@legal-aid.org, (929) 225-3835
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
Affidavit of Service of Motion on NYS Attorney General 18
Exhibits A-F in Opposition 20-25
Attorney's Affirmation in Reply 26
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, 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 Evans1 . 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 (––– U.S. ––––, 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, L. 2021, c. 417, Part A, § 42 ("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, 2022 WL 534305, 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 US 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 WL 620020, 2022 N.Y. 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 N.Y. 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.
On reply, Petitioner points to two undisputed facts which render Respondent's eligibility for ERAP irrelevant to this proceeding: Respondent is not a tenant or leaseholder and Petitioner will not accept any ERAP funds on behalf of Respondent. Regarding the petition's claim for use and occupancy, Petitioner argues that this is a remedy to prevent unjust enrichment, it is not asserted to create a tenancy. As to the cases cited by Respondent, Petitioner argues that they can be distinguished and/or support vacatur of the ERAP stay.
As to service on the NYSAG, Petitioner argues that the website Respondent quotes to is not binding authority, and, in any event, Petitioner followed other guidance it found on that same website. Further, Petitioner provides tracking records for the overnight mailing showing the papers were delivered to the NYSAG's office on March 2, 2022 and asks that, if the Court finds service was deficient, the motion be adjourned for additional service on the NYSAG.
As a preliminary matter, the court rejects Respondent's argument that Petitioner's constitutional argument should be rejected due to improper notice to the NYSAG. The relevant statutes, Executive Law § 71 and CPLR § 1012(b), do not require service of the notice at a particular NYSAG office and, accordingly, the information on the agency's website is suggestive, not compulsory. In any event, as discussed below, this Court does not reach the constitutional question Petitioner raises and, accordingly, this is a moot point.
The key questions raised by Petitioner's motion and Respondent's opposition thereto are whether this Court has the authority to vacate an ERAP stay and, if so, whether it should do so on the facts presented in this case. For the following reasons this Court concludes that it does have such authority and that it is appropriate to do so in this case.
The ERAP Law, originally enacted as part of New York State's 2021 Budget Bill, signed by the Governor on April 16, 2021, L. 2021, c. 56, Part BB, established a rent relief program for the distribution of federal funds, to be implemented and administered by OTDA. Certain provisions of the ERAP statute were amended effective September 2, 2021 by the passage of L. 2021, c. 417, Part A. Relevant to the arguments presented in support of and opposition to Petitioner's motion are the following sections of the ERAP Law:
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