Bitzarkis v. Evans

• Decision Date: 20 October 2021
• Docket Number: Index No. 81766/2019
• Citation: 73 Misc.3d 827,157 N.Y.S.3d 330
• Parties: Veronica Gamboa BITZARKIS, Petitioner, v. Lila EVANS, Respondent.
• Court: New York Civil Court

73 Misc.3d 827

157 N.Y.S.3d 330

Veronica Gamboa BITZARKIS, Petitioner,

v.Lila EVANS, Respondent.

Index No. 81766/2019

Civil Court, City of New York, Kings County.

Decided on October 20, 2021

For Petitioner: David Stern

For Respondent: Paul Leroux and George Gardner III

Jack Stoller, J.

The Decision and Order on this motion are as follows:

Veronica Gamboa Bitzarkis, the petitioner in this proceeding ("Petitioner"), commenced this proceeding against Lila Evans, the respondent in this proceeding ("Respondent"), seeking possession of 122 Herkimer Street, Apt. 2, Brooklyn, New York ("the subject premises") on the basis of a termination of an unregulated tenancy. The Court awarded Petitioner a final judgment after trial and permitted the issuance of a warrant of eviction. Petitioner now moves to challenge a hardship declaration Respondent filed pursuant to a recently-enacted statute.¹

Background

Respondent lives in the subject premises, which is one unit in a three-family house. Petitioner and Petitioner's husband live in the other two units. Petitioner terminated Respondent's tenancy by service of a predicate notice and commenced this proceeding by a notice of petition and petition filed on November 1, 2019 and noticed to be heard on November 12, 2019. After several adjournments, the matter proceeded to trial on October 7, 2020. By a decision dated October 14, 2020, the Court awarded Petitioner a final judgment of possession, permitted the issuance of the warrant of eviction forthwith, and stayed execution of the warrant through November 30, 2020. As of this writing, no eviction has occurred in this matter.

On December 28, 2020, the Governor signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, L. 2020, c. 381 ("CEEFPA"). CEEFPA provided tenants with a mechanism by which they could inform the Court of the effects of the COVID-19 pandemic on them called a "hardship declaration." Tenants filing a hardship declaration could state that they suffered a financial hardship and/or state that they sustained a medical condition that renders moving to be a health risk. A tenant's filing of a hardship declaration in a matter would stay an eviction through the date set by statute. Respondent filed a hardship declaration in this matter dated February 26, 2021 that stated that she suffered a financial hardship. That hardship declaration did not state anything about any medical condition affecting Respondent.

During the pendency of the statutory stay, by an order dated August 12, 2021, the U.S. Supreme Court enjoined any enforcement of this provision of CEEFPA, Chrysafis v. Marks , ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006, finding that CEEFPA denied landlords a hearing challenging a tenant's self-certification of a hardship and that such a denial violated due process. The Legislature responded by enacting a new statute, signed into law on September 2, 2021, L. 2021, c.417 ("the New Statute"), that provides, inter alia , that hardship declarations, both newly-filed and filed pursuant to CEEFPA, effectuate a stay of evictions for the declarants through January 15, 2022, L. 2021, c. 417, Part C, Subpart A, § 6(a)(ii), but also that landlords may move to challenge hardship declarations on a showing of good faith. L. 2021, c. 417, Part C, Subpart A, § 10(a).

While Respondent was pro se , Respondent moved for a stay of eviction by an order to show cause dated September 14, 2021. Respondent then retained counsel and filed a new hardship declaration dated September 16, 2021 that alleged both that she had suffered a financial hardship and that she has a medical condition. Petitioner's affidavit in reply makes it clear that Petitioner does not contest that Respondent has a medical condition of the kind mentioned in CEEFPA and the New Statute.

Petitioner supports her instant cross-motion challenging Respondent's hardship declaration by averring that the pandemic could not have affected Respondent's income because public assistance supported Respondent both before and during the pandemic, which Petitioner knows because she receives Respondent's rent payments from the New York City Human Resources Administration ("HRA").² Respondent avers in opposition to Petitioner's cross-motion that she contracted COVID-19 earlier in 2021; that she survived only by being on a ventilator for thirty days, which damaged her lungs and cardio-vascular system; that she then spent two weeks at a rehabilitation center to regain the ability to walk; that she tries to stay in the subject premises as much as possible because she is worried about contracting COVID-19 again; and that the pandemic increased the amounts that she had to spend to avoid contact with others and infection, like taking taxis instead of public transportation and buying masks, hand sanitizer, and cleansers

. Petitioner avers in reply that she personally observes Respondent coming and going to and from the subject premises; that she has observed Respondent entertaining guests; and that she has smelled marijuana and heard loud music when Respondent has entertained guests.

Discussion

The New Statute provides that a petitioner in a summary proceeding "may" make a motion challenging a tenant's hardship declaration "attesting a good faith belief that the respondent has not experienced a hardship and the court shall grant a hearing to determine whether to find the respondent's hardship claim invalid." L. 2021, c. 417, Part C, Subpart A, § 10(a)(emphasis added). The legislation actually cites Chrysafis v. Marks , supra , by name, L. 2021 c. 417, § 2, thus demonstrating that the Legislature could not have intended to provide landlords with a meaningless remedy. Accordingly, the Legislature did not require landlords to, for example, show "knowledge" of a tenant's hardship status to obtain a hearing. Rather, landlords only have to show a "belief," albeit one that has a good-faith basis. Petitioner's averment that both before and during the pandemic she receives Respondent's rent from HRA is exactly the kind of discreet, specific, non-conclusory fact — and therefore made in good faith — upon which to form a "belief" that Respondent has not suffered a pandemic-related hardship. As the statute provides that the Court "shall" hold a hearing upon such a showing, then, Petitioner proves an entitlement to a hearing as a prima facie matter. See Sanchez-Tiben v. Washington , 73 Misc.3d 721, 155 N.Y.S.3d 741 (Civ. Ct. Bronx Co. 2021).

Respondent argues that Petitioner did not show the requisite "good faith" to obtain a hearing because Petitioner only spoke to one means by which the pandemic could have affected Respondent's inability to pay rent, i.e., a change in her income, and both CEEFPA and the New Statute identify six possible causes of an inability to pay rent that could comprise a hardship: a loss of income, an increase in expenses related to essential work, an increase in family responsibilities, an increase in out-of-pocket expenses, moving expenses, and a catchall. L. 2021, c. 417, Part C, Subpart A, § 5(a). The New Statute does not require tenants to apprise landlords or the Court which of the six causes of an inability to pay rent apply to them, which would otherwise give landlords notice of the showing they would need to make for a challenge to a hardship declaration. If the Court adopted Respondent's argument, then, and conditioned a hearing on a landlord's information about a spectrum of knowledge about a tenant so broad as to be burdensome to the landlord, the landlord would not receive process in a meaningful manner as required for the process to be due, Brock v. Roadway Express, Inc. , 481 U.S. 252, 261, 107 S. Ct. 1740, 1747, 95 L.Ed.2d 239 (1987), Proctor v. LeClaire , 846 F.3d 597, 609 (2nd Cir. 2017), LaCorte Elec. Constr. & Maint., Inc. v. Cnty. of Rensselaer , 80 N.Y.2d 232, 237, 590 N.Y.S.2d 26, 604 N.E.2d 88 (1992), Matter of State of NY v. Farnsworth , 75 A.D.3d 14, 20, 900 N.Y.S.2d 548 (4th Dept. 2010), which would defeat the intent of the Legislature to address the due process...