Abuelafiya v. Orena

• Decision Date: 17 September 2021
• Docket Number: Index No. LT-152-20/HU
• Citation: 73 Misc.3d 576,155 N.Y.S.3d 715
• Parties: Mary ABUELAFIYA, Petitioner, v. Paul ORENA, Mary Orena, Respondents.
• Court: New York District Court

73 Misc.3d 576
155 N.Y.S.3d 715

Mary ABUELAFIYA, Petitioner,
v.
Paul ORENA, Mary Orena, Respondents.

Index No. LT-152-20/HU

District Court, New York, Suffolk County, Third District.

Decided on September 17, 2021

155 N.Y.S.3d 716

Bass & Associates of NY, PLLC, Melville (Alyson E. Bass of counsel), for petitioner.

Law Offices of Sam Afra, P.C., Carle Place, for respondents.

C. Stephen Hackeling, J.

73 Misc.3d 577

The respondents, Paul and Mary Orena (hereafter "tenants"), move by application dated August 20, 2021, seeking to stay and/or vacate their warrant of eviction pursuant to New York RPAPL Sec. 749 (3) and also pursuant to New York's Emergency Rental Assistance Program (hereafter "ERAP") law and the U.S. Center for Disease Control (hereafter "CDC") order issued August 3, 2021 pursuant to regulation 70.2 implementing 42 USC Sec. 264.

The Undisputed Facts

It is either conceded or not disputed by the parties that the tenants rented the real property premises owned by petitioner Mary Abuelafiya (hereafter "the landlord") at 3 Dolphin's Rise, Lloyd Harbor, New York, on August 24, 2019. The lease was in writing and for one year and one week running through August 31, 2020 at a monthly payment rate of $6,800.00. The tenants defaulted in making rent payments after March 2020. The landlord's 2020 non-payment petition was adjourned as a result of the Court's COVID closure until May 6, 2021. A warrant of eviction was issued May 26, 2021 as the tenants did not appear and did not file a COVID-19 Hardship Declarations prior to said date. The tenants assert they filed such a Declaration dated May 4, 2021 via fax but could not produce a written confirmation of same. To this date the Court has not received the tenants hardship declaration, although they have had multiple Court appearance opportunities to file same.

After service of the Sheriff’ 14 day eviction notice, the tenants filed an Order to Show Cause dated July 15, 2021 seeking to vacate their default asserting the New York's Emergency Eviction and Foreclosure Prevention Act of 2020 moratorium. The tenants presently owe over $113,000.00 of rent. Said application was withdrawn after the U.S. Supreme Court ruled said statute unconstitutional. Prior to the withdrawal,

73 Misc.3d 578

the tenants conceded they own another house in Atlantic Beach, New York, but do not want to move there as their children are enrolled in school in Cold Spring Harbor. The tenants teenage son answered the door at the Atlantic Beach house, although there exist a dispute at to whether this house is presently rented to a third party, so as to prevent the tenants from utilizing same.

155 N.Y.S.3d 717

New York RPAPL Sec. 749(3)

The tenants initially request that this Court vacate its prior warrant of eviction for "good cause", pursuant to the provisions of New York RPAPL Sec. 749(3). Good cause has been determined to involve either fraud by the landlord or a demonstration that the tenant has a meritorious defense or involving a misunderstanding involving a settlement stipulation. These circumstances do not exist in this case. This matter seems to fall squarely within the realm of the asserted "COVID-19" stay protections provided by the legislature. As such, the Court need not invoke its Sec. 749(3) discretionary authority to vacate its prior Order.

CDC Eviction Moratorium

The Court will deal summarily with the tenants CDC stay argument. The CDC eviction stay order (effective August 3, 2021), is a regurgitation of a similar predessor regulation which has...