Joute v. Hinds

• Decision Date: 16 May 2022
• Docket Number: Index No. LT No. 77438/19
• Citation: 75 Misc.3d 764,170 N.Y.S.3d 827
• Parties: Joseph JOUTE, Petitioner, v. Orville HINDS and Takecia Long, Respondent-Tenants, and "John Doe’’ and "Jane Doe," Respondent-Undertenant(s).
• Court: New York Civil Court

75 Misc.3d 764

170 N.Y.S.3d 827

Joseph JOUTE, Petitioner,

v.Orville HINDS and Takecia Long, Respondent-Tenants, and "John Doe’’ and "Jane Doe," Respondent-Undertenant(s).

Index No. LT No. 77438/19

Civil Court, City of New York, Kings County.

Decided on May 16, 2022

Thomas & Spikes Esqs., Brooklyn (James Thomas of counsel), for petitioner.

RiseBoro Community Partnership/LEAP, Brooklyn (Kinanda Williams-Murray of counsel), for respondents.

Hannah Cohen, J.

The Decision and Order are as follows:

Petitioner commenced this holdover proceeding seeking possession of the premises on or about September 2019. The case first appeared on the courts calendar on September 26, 2019 and was adjourned to October 25, 2019 for all purposes. On October 25, 2019 Takecia Long appeared and agreed to a final judgment of possession, warrant to issued forthwith and execution stayed through January 31, 2020 for respondent to vacate the premises. Respondent acknowledged owing arrears of $11,000 through October 31, 2019. In consideration of the vacatur, petitioner agreed to waive past arrears and future use and occupancy through January 31, 2020. On December 3, 2019 a judgment after inquest was entered against Orville Hinds and John and Jane Doe. On January 16, 2020 respondent Takecia Long sought an order to show cause requesting additional time to find an new residence. By order dated January 26, 2020 the court stayed the warrant through February 29, 2020 provided respondent paid $2,200 by February 10, 2020. On February 21, 2020 respondent Takecia Long again sought by order to show cause an extension to vacate. By order dated March 3, 2020 the court again stayed the warrant through March 31, 2020 provided respondent paid $2,200 by March 5, 2020. On March 17, 2020 the court closed due to the COVID-19 health pandemic. On February 24, 2021 respondent filed a hardship declaration with the court which stayed the proceeding through January 15, 2022. In March 2022, petitioner by motion sought to execute upon the warrant. Respondents appeared with counsel and filed an Emergency Rental Assistance Program application on March 21, 2022 which stayed this proceeding. On April 19, 2022 petitioner filed the herein motion to vacate the ERAP stay asserting that the premises is located in a one or two family home, that respondents already have a judgment of possession against them and respondents do not qualify for the ERAP stay as rent was not sought and is not sought, and that any application under the ERAP program was fraudulent as both respondents have and continue to be gainfully employed. Petitioner argues that as the court placed the matter on the administrative ERAP calendar, which places a stay of the proceedings, the court has the inherent power, as have many other courts have found to modify, vacate such decrees or orders where continued enforcement of the injunctive process is inequitable, oppressive and unjust or in contravention of the policy of the law (See Dictograph Products Inc., v. Empire State Hearing Aid Bureau Inc. , 4 A.D.2d 508, 167 N.Y.S.2d 541 [1st Dept. 1957] ).

Respondents oppose the motion and argue the following: (1) that petitioner failed to serve the Attorney General pursuant to Executive Law 71(3) and CPLR 1012(B)(1) and therefore cannot challenge the constitutionality of the ERAP statute; (2) the court lacks subject matter jurisdiction to enter a declaratory judgment; and (3) equitable considerations mandate a stay until an administrative determination is made. Respondents also assert in affidavits, their financial hardships. Petitioner in reply reiterates that this is a holdover proceeding and that the last and only use and occupancy paid by the respondents was in April 2020 and respondents have remained in possession an additional two and half years beyond the vacatur date. Petitioner by affidavit asserts a financial hardship in having to house respondents for three years without any compensation.

Respondent's argument that the court must address the constitutionality of a statute in order to determine provisions of a statute is incorrect. As noted extensively in the holding in 2986 Briggs LLC v. Robert Evans ; J Doe No.1, J. Doe #2, N.Y. Slip Op. 50215(U), 2022 WL 853132 [Civ. Ct. Bronx Co 2022] Executive Law § 71 and CPLR 1012(b) does not require service upon the Attorney General's office, as the notice is suggestive in nature and not mandatory.

As to the courts jurisdiction, the court has inherent authority to determine eligibility for purposes of the stay, and any concerns when facts indicate a lack of fairness, credibility, fraud or bad faith. (See Isidoro v. Team Properties LLC. , 2021 N.Y. Slip Op. 32626[U], 2021 WL 5850027 [N.Y. Sup. Ct. N.Y. Co. 2021] ; 255 Skyline Drive Ventures v Ryant [L & T 50014-20 [Civ Ct Richmond Co 2021]; Harbor Tech LLC v. Correa , 73 Misc. 3d 1211[A], 2021 WL 4945158 [Civ. Ct. Kings co. 2021] ; Grevitch v Robinson L & T 72639-18 [Civ Ct Kings Co 2022]; Sea Park LP v. Foster , 74 Misc. 3d 213, 160 N.Y.S.3d 792 [Civ. Ct. Kings co. 2021] ; 560-566 Hudson LLC v. Hillman , 2022 N.Y. Slip Op. 30718(U), 2022 WL 1003480 [Civ. Ct. N.Y. co. 2022] ; 204 W. 55th St LLC v Mackler , NY Slip Op 32901(u) [Civ Ct NY Co]; Kristiansen v. Serating, 75 Misc.3d 331, 165 N.Y.S.3d 828 [N.Y. Dist. CT. Suffolk Xo. 2022 ; Zheng v. Guiseppone , 74 Misc. 3d 1231[A], 2022 WL 1123270 [Richmond Co. Civ. Ct. 2022] ; Papandrea-Zavaglia v. Arroyave , 75 Misc.3d 541, 168 N.Y.S.3d 789 [Civ. Ct. Kings Co. 2022] ). The court has inherent power, and indeed responsibility, to the administration of justice, to control their calendars and to supervise the course of litigation before them. See Grisi v. Shainswit , 119 A.D.2d 418, 507 N.Y.S.2d 155 [1st Dept. 1986] ).

The court is aware that the legislature in enacting laws determines the public policy of a state and undoubtedly enacted the provisions of the COVID-19 Emergency Rental Assistance Program in order to meet the challenges of tenants and lawful occupants in remaining in their homes while attempting to meet their financial obligations in paying rent during and through the pandemic period. It is the courts role to interpret the laws and give appropriate effect to the legislative intent while ensuring the rights of all individuals. (See Campaign for Fiscal Equity, Inc. v. State of New York , 100 N.Y.2d 893, 769 N.Y.S.2d 106, 801 N.E.2d 326 [2003] ). Previously in the case of Chrysafis v. Marks , Sup. Ct., ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006 (2021) the United Stated Supreme Court found that the New York statute allowing a tenant's ability to self certify financial hardship which stayed a proceeding, without the ability to challenge such a declaration in the court violated due process. This led the New York State legislature to revise the statute to permit a legal challenge to the Hardship declaration. Here, similarly, when filing an ERAP application, any person may file an ERAP application, which stays a proceeding until a determination is made, The mere act of filing the application, regardless of whether the person is a tenant, lawful occupant, squatter, family member, guest, licensee, former employee, would conceivably stay the proceeding. The statute had no mechanism if the application was not completed timely, and provides no time frame for a decision, evoking a stay of indefinite stature. The person filing the application evokes the automatic stay even if such application was not made in good faith or where rent or use and occupancy is not sought. These concerns are similar to the concerns raised in Chrysafis , supra which barred one party from participating and engaging in the process.

Here, petitioner has not sought use or occupancy in the original petition, and in fact waived past arrears and future use and occupancy pursuant to the 2019 stipulation. Any approval by the ERAP program would not preserve any tenancy as petitioner already has a judgment and warrant against the respondents in this unregulated premises.

Courts have adjudicated that in appropriate circumstances, the court has the authority to lift the ERAP stay (See Abuelafiya v. Orena , 73 Misc. 3d 576, 155 N.Y.S.3d 715 [Dist. Ct. 3rd Dist. Suffolk co. 2021] where court found it had inherent authority by statute to determine a households eligibility under ERAP and found the...