Harmony Mills W. LLC v. Constantine, 2022-22123

CourtNew York City Court
Writing for the CourtThomas Marcelle, City Court Judge
PartiesHarmony Mills West, LLC, d/b/a the Lofts at Harmony Mills, Petitioner-Landlord, v. Jennifer Constantine, John Doe and All Others Claiming Possession Thereunder, Respondent-Tenant.
Docket NumberIndex LT-124-22/CO,2022-22123
Decision Date25 April 2022

Harmony Mills West, LLC, d/b/a the Lofts at Harmony Mills, Petitioner-Landlord,
v.

Jennifer Constantine, John Doe and All Others Claiming Possession Thereunder, Respondent-Tenant.

No. 2022-22123

Index No. LT-124-22/CO

City Court of Cohoes

April 25, 2022


John T. Keenan III, Esq. Albany for Petitioner.

Legal Aid Society of Northeastern (Victoria M. Esposito, Esq. of counsel), Albany for Respondent.

Thomas Marcelle, City Court Judge

On or about October 31, 2020, tenant Jennifer Constantine ("tenant") entered into a one-year residential lease with Respondent Lofts at Harmony Mills West LLC ("landlord"). On March 9, 2022, Harmony Mills filed a non-payment proceeding (RPAPL 711 [2]) alleging that the tenant had failed to pay any rent from April 2021-March 2022 (a full year). The return date for the Petition to be heard was March 22. On that date, the tenant informed the court that she had filed an application with the Office of Temporary and Disability Assistance ("OTDA") for rental payments under the Emergency Rental Assistance Program law ("ERAP"), L 2021 ch 56, part BB as amended L 2021 ch 417, part A. Specifically, the tenant filed her application with OTDA on March 21, the day before her court appearance. This filing triggered an automatic statutory stay of eviction proceedings (ERAP § 8). The stay remains in effect until OTDA determines the tenant's eligibility to receive payments under the ERAP program (Id.).

However, there was a problem; by October of 2021, OTDA had exhausted its funding allocation and had no more money to help tenants who filed for rent payments after that date (Hidalgo v New York Office of Temporary and Disability Assistance, [Queens County Sup Ct, Kotler, J., index no. 453931/2021]). Of course, with no money in the program, it was a dead letter-indeed, OTDA closed its portal, preventing tenants from submitting new applications (Id.). [1] Nevertheless, because the legislature had not yet passed the State's budget, the court, in the exercise of its discretion, adjourned the case, to determine how much money the legislature might provide for the ERAP program. Ultimately, the new budget contained 800 million dollars for ERAP.

On April 18, the case returned to the court's calendar. Despite OTDA being infused with new funds and notwithstanding ERAP § 8's stay provision, the landlord pressed for a hearing on its eviction petition.

In particular, the landlord argued that due process required the court to conduct a hearing as a prerequisite to any stay. To support it's cause, the landlord advanced three reasons: (1) the tenant was acting in bad faith because although she had not paid any rent for a full year, she failed to apply for ERAP assistance until after the landlord had commenced the eviction proceeding; (2) that the new allocation of funds to the ERAP program was barely sufficient to cover the needs of tenants who had applied for assistance through December of 2021 and thus, the landlord has no hope of receiving payment; and (3) since the tenant is on a fixed income and her income was undisturbed by the pandemic, she was ineligible for payments under ERAP criteria (ERAP § 5 [1] [a] [ii]). In essence, the landlord claimed that the tenant lacked a good faith basis to deploy ERAP's stay provision. Therefore, the landlord demanded a hearing so that the court could determine if the non-payment proceeding should move forward.

The tenant resisted. For several reasons, which are explored below, the tenant argued that under the facts of this case, the court lacks the power to conduct any hearing but rather is required to stay judicial proceedings until OTDA passes on the tenant's application.

The tenant first invokes Chief Administrative Judge Lawrence K. Marks's administrative order AO/34/22 ("AO 34"). The order provides in pertinent part:

"Eviction protections provided by... ERAP... remain fully in effect. Eviction matters where there is a pending ERAP application shall be stayed until a final determination of eligibility for rental assistance is issued by... OTDA.... Landlords shall continue to submit notice of a known ERAP application to the court where the eviction proceeding is pending in accordance with Administrative Order AO/244/21" (emphasis added)

The tenant asserts that AO 34 controls the court. That is, the Office of Court Administration ("OCA") has imposed upon the court a binding interpretation of the ERAP statute. And that the court must unwaveringly adhere to OCA's conclusion that evictions must be stayed without exception upon a tenant's filing of an application with OTDA. Alternatively, AO 34, by its own authority (and independent of any statutory requirements), mandates courts to stay all eviction proceedings where a tenant has a pending ERAP application. These are novel and creative arguments. No court has addressed whether AO 34 places limitations upon it.

An administrative order commands respect. The court concludes, however, that the tenant overreads AO 34. To begin with, the tenant's position is inconsistent with OCA's function. Judiciary Law § 212 grants OCA many powers-none of them judicial in nature. "The functions of the Office of Court Administration, ..., are largely concerned with the staffing and physical operation of the courts, as opposed to adjudicatory functions...." (Quirk v. Evans, 116 Misc.2d 554, 557-558 [New York County Sup Ct 1982]). Indeed, the chief administrator of the courts need not even be a member of the judiciary (Judiciary Law § 210 [3]).

Thus, AO 34's purpose cannot be to demand that judges submit to a statutory interpretation rendered by an administrative agency in a factual void, in a non-adversarial setting and without the benefit of briefing and argument. Moreover, if AO 34 imposes a stay by administrative command, then AO 34 would invade the role of the judiciary. Judges are not puppets to be pulled by administrative strings-nothing in the order suggests such a vast alteration in the judicial system. Rather, the operative part of the order, that part of the order that is administrative in nature, mandates landlords to tell the trial court if the tenant has filed an ERAP application. The order merely imposes a filing requirement. Therefore, AO 34 does not control the outcome of this case.

Next, the tenant acknowledges that some courts have disregarded ERAP § 8's stay provision. The tenant makes a cogent argument that this case is distinguishable. In particular, the tenant maintains that in the previously decided cases the respondents were not protected by ERAP and thus, under those peculiar circumstances contained within those individual cases, a stay was inapplicable (see e.g. 2986 Briggs LLC v Evans, 74 Misc.3d 1224 (A) [Civ Ct, Bronx County 2022] (respondent was not a tenant, but a licensee who was not obligated to pay rent); Kristiansen v Serating, 2022 NY Slip Op 22097 [Suffolk Dist Ct 2022] (maximum ERAP award would not cover entire amount of arrears; stay lifted as to surplus amount only); Actie v Gregory, 74 Misc.3d 1213 (A) [Civ Ct, Kings County 2022] (primary tenant had vacated, respondent was subtenant who had no duty to pay rent to landlord); Karan Realty Assoc. LLC v Perez, 2022 NY Slip Op 22093 [Civ Ct, Queens County 2022] (housing was incident of respondent's former employment and he had no duty to pay rent; respondent had not completed ERAP application); Kelly v Doe No.1, 2022 NY Slip Op 22077 [Civ Ct, Kings County 2022] (respondents had no legal right to possession and thus no obligation to pay rent); Ami v Ronen, 2022 NY Slip Op 22098 [Civ Ct, Kings County 2022] (landlord sought use of property for disabled family member and thus fell under ERAP exception); Papandrea-Zavaglia v Arroyave, 2022 NY Slip Op 22109 [Kings County, 2022] (tenancy had already been terminated and petitioner waived right to arrears).

The above line of cases stem from...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT