Actie v. Gregory
| Decision Date | 18 February 2022 |
| Docket Number | Index No. 300703-20/KI |
| Parties | Samuel ACTIE, Petitioner-Landlord, v. Tawana GREGORY, Respondent-Tenant. Kawan Mack, John Doe and Jane Doe, Respondents-Undertenants. |
| Court | New York Civil Court |
Recitation, as required by CPLR 2219(a), of the papers considered in the review of Petitioner's motion to restore the instant proceeding to the court's calendar.
Affidavit or Affirmation in Opposition to Order to Show Cause 2
Court file contained on NYSCEF
This is a holdover proceeding in an unregulated unit where Petitioner seeks possession of the premises. Respondent filed an ERAP application and Petitioner moves to vacate the automatic ERAP stay imposed by Chapter 417 (A)(B3) of Chapter 56 of the laws of 2021. In this matter Petitioner was notified that an ERAP application was submitted by respondent Tawana Gregory, a tenant who has vacated since the filing of the application, and of the stay provided pursuant to the statute that remains in place pending a determination of the ERAP application. Kawan Mack, an undertenant named in the petition, remains in possession of the premises and opposes Petitioner's motion challenging the stay and seeking its vacatur. Mack asserts that "there is nothing in the four corners of the statute" that permits a challenge to the automatic stay that is triggered when an individual files an ERAP application and that petitioner's motion is somehow "inappropriate and thus should be automatically denied."
In support of his motion, Petitioner argues that the automatic ERAP stay is a due process violation akin to the stay discussed in Chrysafis v. Marks , Sup. Ct., U.S., S.Ct., L.Ed.2d, 2021 WL 3560766 (8-12-21), where the United States Supreme Court found that a tenant's ability to self-certify financial hardship and unilaterally stay a proceeding via the filing of a Hardship Declaration ultimately led to the decision that fully enjoined Part A of CEEFPA and prompted the legislature to revise that statute to permit a challenge to a Hardship Declaration. Here, with ERAP, there is no substantive or meaningful distinction in the mechanics or logistics of how ERAP works and how CEEFPA worked prior to the Chrysafis decision.
Pursuant to Chapter 417 (A)(B3) of Chapter 56 of the laws of 2021, once a tenant or occupant files an ERAP application, the proceeding is stayed with limited exceptions enumerated by the statute and the case remains stayed until a determination of the application is made. The statute provides no mechanism for a challenge to the stay and there appears to be either indefinite or inchoate timeframes within which an application must or may be processed. If a petitioner is precluded from challenging the stay, the outcome is the same as existed with CEEFPA prior to Chrysafis, supra. An occupant may file an ERAP application, whether eligible or not, an intended beneficiary of the program or not, in good faith or bad, and significantly where the outcome will not result in the preservation of a tenancy. In this scenario the occupant will have unilaterally invoked a stay while precluding the petitioner in the action from engagement or participation in the process to which they are a party. This is the outcome that influenced the decision in Chrysafis, supra, where the Court enjoined the enforcement of Part A of CEEFPA.
CPLR Section 2201 provides "[e]xcept where otherwise proscribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as are just." In the ordinary course of a proceeding a court has significant discretion as to whether, when and upon what terms this typically interim form of relief may be granted. Traditionally the individual seeking a stay has the burden of...
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