Lahijani v. Madison Global LLC, Index No. LT-306321-21/NY

CourtNew York Civil Court
Writing for the CourtIlana J. Marcus, J.
Citation73 Misc.3d 1025,157 N.Y.S.3d 861
Parties Ardalan LAHIJANI, Petitioner, v. MADISON GLOBAL LLC, Respondent.
Docket NumberIndex No. LT-306321-21/NY
Decision Date10 November 2021

73 Misc.3d 1025
157 N.Y.S.3d 861

Ardalan LAHIJANI, Petitioner,
v.
MADISON GLOBAL LLC, Respondent.

Index No. LT-306321-21/NY

Civil Court, City of New York, New York County.

Decided on November 10, 2021


157 N.Y.S.3d 862

For Petitioner: Marybeth Hotaling and Jason Klein Fuhrman NOVICK, EDELSTEIN, POMERANTZ P.C., 733 Yonkers Ave, Yonkers, NY 10704 (914) 375-0100

For Respondent: Doreen J Fischman, FISCHMAN & FISCHMAN, 305 Broadway, Suite 201, New York, NY 10007 212-274-0555

Ilana J. Marcus, J.

157 N.Y.S.3d 863
73 Misc.3d 1026

In this landlord-tenant nonpayment proceeding involving a commercial tenancy, petitioner landlord Ardalan Lahijani commenced this action by filing a Notice of Petition on September 10, 2021. On October 15, 2021, respondent tenant Madison Global LLC filed a Covid-19 Hardship Declaration, which stayed the instant proceeding to a date after January 15, 2022. Petitioner makes the instant order to show cause to challenge respondent's hardship declaration, find it invalid, lift the stay, and proceed with its nonpayment eviction action. Respondent submitted opposition and this court heard oral argument. The decision and order is as follows:

By way of background, on March 9, 2021, then New York State Governor Andrew Cuomo signed the NY State Senate Bill S471A, Emergency Protect Our Small Businesses Act of 2021 ("EPOSBA"), into law with the intention to provide temporary eviction and foreclosure protections for small businesses that were experiencing a financial hardship as a result of the COVID-19 pandemic. EPOSBA at that time created a stay on evictions through May 1, 2021. The stays were thereafter extended.

In June 2021, residential landlords sought a preliminary injunction of the stays set forth in the residential "sister statute" to EPOSBA, the "COVID Emergency Eviction and Foreclosure Prevention Act of 2020" ("CEEFPA") before the Eastern District Court (see Chrysafis v. Marks , ––– F.Supp.3d ––––, 2021 WL 2405802 [E.D. N.Y., June 11, 2021, 21-cv-2516(GRB)], vacated and remanded , 15 F.4th 208 [2d Cir. 2021] ). The Eastern District denied the landlords’ motion for a preliminary injunction ( id. ). The landlords made an emergency application for injunctive relief to the United States Supreme Court (see Chrysafis v. Marks , ––– U.S. ––––, 141 S. Ct. 2482, ––– L.Ed.2d ––––, 210 L.Ed.2d 1006 ).

In August 2021, the United States Supreme Court enjoined enforcement of the "hardship" stays set forth in CEEFPA, holding

73 Misc.3d 1027

that a self-certified and uncontestable hardship declaration was a "scheme" that "violates the Court's longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause" ( id. , quoting In re Murchison , 349 U.S. 133, 137, 75 S.Ct. 623, 99 L.Ed. 942 [1955] ).

Recognizing that this same rationale would apply to the virtually identical provisions of EPOSBA, the New York State legislature enacted certain amendments of the law. On September 2, 2021, the legislature modified and extended EPOSBA to include a new right for landlords to challenge the validity of a tenant's hardship declaration (see NY State Senate Bill, L 2021, ch 417, "the amended EPOSBA"). The legislature explicitly provides that its intent in creating the amended EPOSBA is to address the lack of due process cited by the United State Supreme Court in Chrysafis (see id. at § 2).

In this regard, on the subject of validity of hardship declarations, § 10 of the amended EPOSBA states:

1. Notwithstanding any other provision of this act, a stay under this part shall be granted or continued unless the court finds the respondent's or defendant's hardship claim invalid. A motion may be made by the petitioner or plaintiff, attesting a good faith belief that the respondent or defendant has not experienced a hardship, with notice to the respondent or defendant, and the court shall grant a hearing to determine whether to find the respondent's or defendant's hardship claim invalid.
157 N.Y.S.3d 864
2. After any hearing, if the court finds the respondent's or the defendant's hardship claim valid, the court shall grant a stay or continue a stay pursuant to this act.

3. After a hearing, if the court finds the respondent's or the defendant's hardship claim invalid, the proceedings shall continue to a determination on the merits.

(EPOSBA, L 2021, ch 417, Part B, Subpart A, § 10[a]).

In evaluating same, the Chief Administrative Judge of the New York Courts, on September 8, 2021, issued Administrative Order 261/21, and an accompanying memorandum that clarified the approach of the State Courts. The memorandum directs that a hearing must be held when petitioner attests to a good faith belief that a respondent's certified hardship does not exist (Memoranda accompanying AO 261/21[B][¶7], available at https://www.nycourts.gov/whatsnew/pdf/Evictions-Memo.pdf

73 Misc.3d 1028

[last accessed Nov. 10, 2021]).

The amended EPOSBA, Part B, Subpart A, § 5 defines "hardship" as follows: a business that is unable to pay the rent or other financial obligations under the lease in full or obtain an alternative suitable commercial property because of one or more of the following reasons and any public assistance the business received since the start of the COVID-19 pandemic has not fully made up for the business's loss of revenue or increased expenses: (a) significant loss of revenue during the COVID-19 pandemic; or (b) significant increase of necessary expenses related to providing personal protective equipment to employees or purchasing and installing other protective equipment to prevent the transmission of COVID-19 within the business; or (c) moving expenses and difficulty in securing an alternative commercial property make it a hardship for the business to relocate to another location during the COVID-19 pandemic.

The legislature's requirement for landlords to assert a good faith basis for a "validity" hearing is a low...

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1 practice notes
  • People v. Asare, Index No. 799/21
    • United States
    • United States State Supreme Court (New York)
    • 10 Noviembre 2021
    ...for almost fifteen years. A new felony conviction for a failure to report would make it even more difficult for Asare to reintegrate 157 N.Y.S.3d 861 back into society.1 Therefore, the court concludes that Asare's history, character, and condition favor dismissal.Public Confidence in the Ju......
1 cases
  • People v. Asare, Index No. 799/21
    • United States
    • United States State Supreme Court (New York)
    • 10 Noviembre 2021
    ...for almost fifteen years. A new felony conviction for a failure to report would make it even more difficult for Asare to reintegrate 157 N.Y.S.3d 861 back into society.1 Therefore, the court concludes that Asare's history, character, and condition favor dismissal.Public Confidence in the Ju......

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