Omega Melville, LC v. Fusion Management, Inc., 2021-21186

CourtNew York District Court
Writing for the CourtHON. C. STEPHEN HACKELING, J.D.C.
PartiesOmega Melville, LC, Petitioners v. Fusion Management, Inc., XYZ CORP., Respondents
Docket NumberIndex CV-3880-20/HU,2021-21186
Decision Date16 July 2021

Omega Melville, LC, Petitioners

Fusion Management, Inc., XYZ CORP., Respondents

No. 2021-21186

Index No. CV-3880-20/HU

District Court of Suffolk County, Third District

July 16, 2021

The Law Offices of Scott D. Gross, Esq. Attorneys for Petitioner

Burke & Burke, Esqs., PC Attorneys for Defendant


Upon the following papers numbered 1 thru 10

Read on this motion to strike

Notice of Motion and supporting papers 1-3

Answering Affidavits/Cross Motion and supporting papers 4-6

Affirmation in Opposition to Cross-Motion

Reply Affirmation and supporting papers 7

Filed papers: Hardship Declaration 8

Other Petition and Answer 9-10

Upon the foregoing cited papers, the Decision/Order on the motion is as follows:

The petitioner moves by application dated June 23, 2021 seeking to strike affirmative defenses and counterclaims detailed in the respondent's answer. The respondent cross moves seeking summary judgment dismissing the subject petitioner and asserts that, at a minimum, the Court is statutorily required to stay all matters until September 1, 2021.

The Emergency Moratorium Automatic Stay

The threshold issue advanced for disposition is whether the respondent's May 17, 2021 filing of a "Commercial Tenant Hardship Declaration" serves to unilaterally and automatically stay this summary eviction proceeding until after September 1, 2021.

The respondent argues that the "COVID-19 Emergency Protection Small Business Act", Chapter 381 laws of 2020; Chapter 73 of the laws of 2021 (hereafter "COVID Moratorium") as implemented by the Memorandum Order of the Chief Administrative Judge, dated May 24, 2021, requires no additional documentary proof to trigger its (moratorium) protection from eviction. The language of the statute provides "the submission of a declaration... shall act as a temporary stay applicable to all entities". The Chief Judge's memorandum advises that "those who submitted a Hardship Declaration... such proceedings are now stayed until August 31, 2021." [1] The statute and Order also provide that the Hardship Declaration shall serve as prima facie evidence establishing a rebuttable presumption that a commercial tenant is experiencing financial hardship... due to COVID-19.

At first blush it appears that the creation of a "rebuttable presumption" implies that the petitioner/landlord will be given an opportunity to rebut the declaration of hardship. The respondent's counter argument is that this hearing can only occur after the stay period has expired. See OCA Memorandum of Chief Judge dated May 24, 2021 at ¶ 2(d). Such a conclusion, which grants the respondent the ability to unilaterally obtain a stay without an adversary's ability to challenge same violates "the fundamental requisite of due process of law (which requires) the opportunity to...

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