Barton v. Bixler, 2022-50228

CourtNew York District Court
Writing for the CourtC. Stephen Hackeling, J.
PartiesJoseph Barton, Petitioner v. Kelly Bixler, Respondent.
Docket Number2022-50228,Index LT-156-20/HU
Decision Date30 March 2022

Joseph Barton, Petitioner

Kelly Bixler, Respondent.

No. 2022-50228

Index No. LT-156-20/HU

District Court of Suffolk County, Third District

March 30, 2022

Unpublished Opinion

The Law Office of Mark E. Nadjar, P.C. Mark E. Nadjar, Esq. Attorney for Petitioner

Nassau/Suffolk Law Services, Committee, Inc. Stephanie A. Diemer, Esq. Attorney for Respondent

C. Stephen Hackeling, J.

Upon the following papers numbered 1-12

Read on this Motion

Notice of Motion and supporting papers 1-2

Affirmation in Opposition 3-4

Replying Affidavits and supporting papers by landlord 5-10 and 12

Reply Filed papers by tenant 11


The petitioner landlord Joseph Barton (hereafter "landlord") commenced this summary eviction proceeding pursuant to petition dated September 29, 2020. The tenant, Kelly Bixler (hereafter "the tenant") previously filed a COVID hardship tenant's declaration and received an automatic stay of this eviction proceeding. The Court notes that the COVID Moratorium stay statutorily vitiated on January 15, 2022. Of relevant significance, the tenant has also interposed the affirmative defense that this matter is stayed pursuant to the provisions of New York State's "Emergency Rental Assistance Program" law (Chapter 417 (A)(B3)) of Chapter 56 of the laws of 2021, (hereafter "ERAP"), as a result of the filing of an ERAP application on June 22, 2021. The status of same as detailed by the New York State Office of Temporary and Disability Assistance (hereafter" the Administering Agency") on the date of the first hearing on this application was "under review". By application dated February 7, 2022 the landlord moved to vacate the ERAP automatic stay.

February Hearing

During the initial stage of the hearing on this application, the landlord advanced two arguments. The first was that the tenant is not eligible for ERAP and the second is that the ERAP program is presently "in an unfunded condition". The landlord argues that it is well known that the Administrating Agency has exhausted its funding and is not in a position to finalize a decision on ERAP eligibility. It is argued that as such, the prospect of an administrative decision which could potentially vacate the ERAP stay is at best "illusory", and at worst an "indeterminate impossibility".

As to the first issue posited; this Court has previously opined that it has the inherent concurrent authority to conduct a "good faith" hearing to assess eligibility when a tenant has invoked a self initiated automatic stay by filing an application under the ERAP statute. See, Abuelafiya v. Orena, 73 Misc.3d 576 (Suff. Co. Dist. Ct. 2021). See also, Hudson Ave. Housing Associates v. Howard, 2022 WL 829785 (Civ. Ct. Warren Co., J. Hobbs). The guiding premise of said opinion was the United States Supreme Court's striking down New York's companion eviction moratorium law; wherein it was determined that "due process" prohibits a statute from "precluding a landlord from contesting... certification (of eligibility) and denies the landlord a hearing" to challenge the automatic stay. The problem found with a self certification is that "no man can be a judge in his own case". See, Chrysafia et al v. Marks, 141 S.Ct. 2482 (U.S. 2021); citing to In re Murchison, 349 U.S. 133 (U.S. 1955).

The Court laid out the ERAP eligibility requirements in its Abuelafiya decision and incorporates them by reference herein. The record presented in the hearing the Court conducted in February evidences that the tenant is eligible. The second thornier issue was the landlord's contention that the exhaustion of...

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