Hernandez v. Vasquez

Decision Date03 November 2021
Docket NumberIndex No. 50488/2019
Citation73 Misc.3d 1213 (A),154 N.Y.S.3d 583 (Table)
Parties Carmen HERNANDEZ, Petitioner (Landlord), v. Nieves VASQUEZ and Ricky Bishop, Respondents (Tenant/Undertenant).
CourtNew York Civil Court

Petitioner's Attorney: Michelle L. Walsh, Esq., Law Office of Michelle L. Walsh, PLLC, 26 1st Street, #8024, Pelham, New York 10803, (914) 297-6520, MichelleWalsh@outlook.com

Respondents’ Attorney: Steven T. Hasty, Esq., The Bronx Defenders, 360 East 161st Street, Bronx, New York 10451, (718) 838-7878, StevenH@BronxDefenders.org

Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in determining Petitioner's Motion to Restore to Calendar for Evidentiary Hearing to Contest Validity of Hardship Declaration (M Seq #7):

Papers NYSCEF Doc #

Legacy File 9

Respondent Bishop's Hardship Declaration Dated and Filed 7/19/21 11

Petitioner's Notice of Motion 12

Attorney's Affirmation in Support of Motion Dated 9/22/21 13

Exhibits A-C in Support of Motion 14

(A) Case Summary
(B) Respondent Bishop's Hardship Declaration
(C) Chief Admin Judge's Administrative Order 261/21 Dated 9/8/21

Attorney's Affirmation in Opposition to Motion Dated 10/15/21 15

Attorney's Reply Affirmation Dated 10/26/21 16

Exhibits A-B in Support of Reply Affirmation 17

(A) Notice of Motion
(B) Affidavit of Wanda Rodriguez Sworn to 10/26/21

For the reasons stated below, Petitioner's motion to restore this proceeding for an evidentiary hearing to contest the validity of Respondent Bishop's Hardship Declaration pursuant to L. 2021, Ch. 417, Part C, Subpart A, § 10(a) is granted and the matter is set down for a virtual hearing on December 8, 2021 at 2:00 p.m.

RELEVANT PROCEDURAL HISTORY AND BACKGROUND

This is a "no cause" holdover eviction proceeding commenced by Notice of Petition and Petition dated November 15, 2019 based upon a predicate 30-day tenancy termination notice dated September 30, 2019. Petitioner by counsel and Respondents pro se settled the case on January 10, 2020 in an agreement which granted Petitioner a final judgment of possession, warrant to issue forthwith, execution stayed to February 29, 2020.

Respondents did not move out by February 29, 2020 and, prior to a City Marshal requisitioning issuance of a warrant of eviction, the COVID-19 pandemic struck, Governor Cuomo issued his "New York State on Pause" Executive Order and all non-essential court proceedings and processes were postponed by Chief Administrative Judge Marks under Administrative Order (AO) 68/20 dated March 16, 2020. Thereafter, and throughout the pandemic, Judge Marks and New York City Civil Court's Administrative Judges have issued a series of AOs and Directives and Procedures (DRP), as well as other less formal protocols, establishing procedures for litigants and/or their attorneys to follow in eviction proceedings, first only as to matters deemed essential and then as to non-essential ones.

AO 160A/20, issued on August 12, 2020 and effective August 20, 2020, addresses residential eviction proceedings like this one that were commenced prior to March 17, 2020, authorizing such cases to proceed after the court conducts a status or settlement conference, generally remotely. This requirement applies at any stage of the eviction proceeding, "including any matter where a warrant of eviction has issued and been delivered to an enforcement agent but has not been executed." DRP-213, also issued on August 12, 2020, requires warrant requisitions to be presented by motion on notice to the respondent, and such motions are deemed to comply with the conference requirement of AO 160A/20. A specified "Warning!" notice, in nine languages, with information about how to respond to the papers without going to court and how to get a free lawyer, must accompany such motions. AO 160/20 and DRP-213 were updated in August 2021 by the issuance of AO 245/21 and DRP-217, which continue the conference, motion and notice requirements for petitioners seeking to requisition and enforce warrants in cases with pre-pandemic judgments.

Petitioner filed a "Stipulation and Consent to E-Filing" on November 18, 2020, followed by the e-filing on December 9, 2020 on NYSCEF (New York State Courts Electronic Filing system) of a DRP-213 motion, noticed for January 8, 2021 at 10:00 a.m. Before the court calendared that motion, effective December 28, 2020, the New York State legislature enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA), L. 2020, Ch. 381.1 Initially, CEEFPA stayed all pending proceedings for sixty days. CEEFPA Part A, § 2. CEEFPA authorized a further stay of eviction proceedings and evictions — originally through May 1, 2021 and then extended through August 31, 2021 - for tenants experiencing a financial hardship and/or for whom vacating the premises and moving into new permanent housing would pose a significant health risk due to the COVID-19 pandemic. The mechanism for triggering these stays under CEEFPA was a tenant's signing "under penalty of law" a specified "Hardship Declaration" form, defined in CEEFPA Part A, § 1(4), and submitting it to their landlord or the court. Further, when a tenant selected the "financial hardship" option, CEEFPA Part A, § 11 provided that the Hardship Declaration, "shall create a rebuttable presumption that the tenant is experiencing financial hardship, in any judicial or administrative proceeding that may be brought, for the purposes of establishing a defense under chapter 127 of the laws of 2020, an executive order of the governor or any other local or state law, order or regulation restricting the eviction of a tenant suffering from a financial hardship during or due to COVID-19."

The Court calendared Petitioner's DRP-213 motion initially for a virtual appearance on June 10, 2021 in the Housing Motion Part (HMP), sending out notice to both sides. On that date Respondents were referred for free legal services and the case was transferred to Part D and adjourned to July 20, 2021. On July 19, 2021 Respondent Bishop e-filed a Hardship Declaration with the Court by his newly-retained counsel, with both of the two boxes checked off on the form, indicating that (A) he was "experiencing financial hardship" and unable to pay his rent or use and occupancy because of "one or more" of a list of five COVID-19 pandemic related factors; and (B) "vacating the premises and moving into new permanent housing would pose a significant health risk" due to an increased risk for severe illness or death from COVID-19. Accordingly, at the virtual appearance on July 20, 2021 the Court stayed Petitioner's DRP-213 motion under CEEFPA and re-calendared it for a virtual conference on September 3, 2021.

On August 12, 2021, CEEFPA Part A was enjoined by the United States Supreme Court in Chrysafis v Marks (––– U.S. ––––, 141 S.Ct. 2482, 210 LEd2d 1006, 2021 WL 3560766 [2021], 2021 US LEXIS 3635 ), which specifically took issue with the statute to the extent it allows a tenant to "self-certif[y] financial hardship" while precluding "a landlord from contesting that certification", finding that, "This scheme violates the Court's longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause."

In response to Chrysafis , effective September 2, 2021, the New York State Legislature enacted Chapter 417 of the Laws of 2021 which, inter alia , reinstated many of the Hardship Declaration provisions and extended the prohibition on evictions through January 15, 2022 for residential tenants who suffered financial hardship during the COVID-19 "covered period". L. 2021, Ch. 417, Part C, Subpart A, § 6. Among other provisions, the new law reinstated CEEFPA's "Rebuttable presumption" section quoted above; however, the language was revised to start with the following proviso: "Unless a court determines a tenant's hardship claim invalid pursuant to section ten of this act". L. 2021, Ch. 417, Part C, Subpart A, § 9. Section ten provides a new mechanism for petitioners to challenge the validity of Hardship Declarations: "A motion may be made by the petitioner, attesting a good faith belief that the respondent has not experienced a hardship, with notice to the respondent, and the court shall grant a hearing to determine whether to find the respondent's hardship claim invalid." L. 2021, Ch. 417, Part C, Subpart A, § 10. To implement this section of the new law, Judge Marks issued AO 261/21 on September 8, 2021 which, inter alia , addresses the "Invalid Hardship Declaration Hearing", providing that, "In a pending proceeding where a Hardship Declaration was previously submitted, a petitioner may make a motion on notice to respondent-tenant attesting a good faith belief that the respondent has not experienced the certified hardship."

At the September 3, 2021 virtual conference, the Court granted Respondentsrequest to continue the stay of this proceeding through January 15, 2022 under L. 2021, Ch. 417 and re-calendared it for a virtual appearance on January 18, 2022 at 11:00 a.m. On September 22, 2021 Petitioner's counsel e-filed the motion which is now before the Court, seeking to challenge the validity of Respondent Bishop's Hardship Declaration under L. 2021, Ch. 417, Part C, Subpart A, § 10. While Petitioner noticed the motion for October 12, 2021 at 9:30 a.m., pursuant to administrative protocols the Court calendared the motion for a virtual appearance on October 18, 2021 at 10 a.m. and sent out Microsoft Teams videoconference invitations to counsel for both sides. Respondentscounsel filed opposition papers on October 15. At the October 18 appearance the Court granted Petitioner's request for time to file reply papers and adjourned the motion to October 29, 2021 when argument was heard and the motion was marked submitted.

PETITIONER'S MOTION

Petitioner's motion is supported by the affirmation of her attorney, who argues that Petitioner is entitled to an evidentiary hearing to...

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