Laporte v. Garcia

• Decision Date: 11 April 2022
• Docket Number: Index L & T 001358/21
• Parties: Anthony Laporte, Petitioner, v. Katherine Garcia, Respondent.
• Court: New York Civil Court

2022 NY Slip Op 22126

Anthony Laporte, Petitioner, v. Katherine Garcia, Respondent.

Index No. L & T 001358/21

Civil Court of the City of New York, Bronx County

April 11, 2022

Attorney for Petitioner: Jordan J. Tapia, Esq., Moss &amp Tapia Law, LLC

Attorney for Respondent: Alberto Moises Gonzalez, Esq. Mobilization For Justice, Inc.

Omer Shahid, J.

Recitation as required by C.P.L.R. § 2219(a), of the papers considered in the review of Petitioner's Motion to Vacate the E.R.A.P. Stay (Motion No.1 on N.Y.S.C.E.F.):

Papers Numbered

Notice of Motion (Motion # 1 on N.Y.SC.E.F.) 1

Affirmation in Opposition (Entries 9-11 on N.Y.S.C.E.F.) 2

Petitioner the primary tenant, commenced this holdover proceeding seeking possession of 828 E. 149th Street, Apt. 901, Bronx, NY 10455 (the "subject premises") from Respondent. Respondent obtained counsel and a written answer was filed on N.Y.S.C.E.F. on February 11, 2022.

On the February 15, 2022 appearance, Respondent, through counsel, informed the court that she filed an application for the Emergency Rental Assistance Program ("E.R.A.P."). The matter was placed on the court's E.R.A.P. administrative calendar, pending determination of eligibility, pursuant to the stay imposed by Part BB, Subpart A, § 8 of Chapter 56 of the Laws of 2021 (the "E.R.A.P. Statute") as amended by Part A, § 4 of Chapter 417 of the Laws of 2021 (the "Act"). On February 22, 2022, Petitioner filed the instant motion on N.Y.S.C.E.F. seeking to vacate the stay and the court calendared the motion with the return date of March 15, 2022. Respondent filed opposition papers on N.Y.S.C.E.F. on March 11, 2022. On the March 15, 2022 appearance, the motion was marked submitted for decision.

Petitioner seeks an order vacating the E.R.A.P. stay on the ground that the instant matter is a holdover proceeding and not a nonpayment proceeding. Petitioner also maintains that he has no intention of accepting any E.R.A.P. funds that may issue on Respondent's behalf and will not participate in the process because he seeks possession.

Respondent opposes the motion. Respondent argues that the E.R.A.P. stay is applicable to holdover proceedings and not restricted to only nonpayment proceedings. Respondent also argues that a request of use and occupancy can trigger the E.R.A.P. stay and that a landlord's participation in the process is irrelevant. Lastly, Respondent maintains that an E.R.A.P. stay here is appropriate as Respondent has an illusory tenancy based upon Respondent's allegation that she has occupied the subject premises by herself since September 14, 2021.

Respondent is correct in arguing that the E.R.A.P. stay applies to holdover proceedings as well. Section 8 of Part BB, Subpart A of the E.R.A.P. Statute as amended by Part A, Section 4 of the Act provides in pertinent part: "[I]n any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility." (Emphasis supplied.) Petitioner's argument that the E.R.A.P. stay is restricted to only nonpayment proceedings is not supported by the plain reading of the statute. The language "any pending eviction proceeding" incorporates both nonpayment and holdover proceedings and does not make a distinction between them when it concerns the stay. The exception to this language appears in Section 9-A of the E.R.A.P. Statute which concerns proceedings where respondents are committing nuisance or objectionable conduct, which is not the case here.

While the determination of eligibility rests with the Office of Temporary and Disability Assistance ("O.T.D.A."), determining whether a stay applies or should be lifted, based upon the particular circumstances of a proceeding, is in the court's realm. See 2986 Briggs L.L.C. v. Evans, 74 Misc.3d 1224 (A), 2022 NY Slip Op. 50215(U) (Civ. Ct., Bronx Co. 2022). Since an E.R.A.P. stay can apply in a holdover proceeding and the court has the authority to continue or lift the stay, the question posed is whether the specific facts in this proceeding warrant a vitiation of the E.R.A.P. stay. The court answers that question in the negative.

Section 8 of the E.R.A.P. Statute, as quoted above, states that a proceeding shall be stayed pending determination of eligibility if a "household" applies for the program funds to pay for all or part of the arrears claimed by a petitioner. Pursuant to Section 5(1)(a)(i) of the E.R.A.P. Statute, a "household" is eligible for the program if it "is a tenant or occupant obligated to pay rent in their primary residence in the state of New York." Section 2(7) of the E.R.A.P. Statute defines "occupant" the same as R.P.L. § 235-f which defines that term as "a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants." Furthermore, Section 2(9) of the E.R.A.P. Statute defines "rent" the same as R.P.A.P.L. § 702 which defines it, in pertinent part, as: "the monthly or weekly amount charged in consideration for the use and...