Omega Melville, LC v. Fusion Mgmt., Inc., Index No. CV-3880-20/HU

CourtNew York District Court
Writing for the CourtC. Stephen Hackeling, J.
Citation72 Misc.3d 1048,151 N.Y.S.3d 842
Decision Date16 July 2021
Docket NumberIndex No. CV-3880-20/HU
Parties OMEGA MELVILLE, LC, Petitioners v. FUSION MANAGEMENT, INC., XYZ Corp., Respondents

72 Misc.3d 1048
151 N.Y.S.3d 842


Index No. CV-3880-20/HU

District Court, New York, Suffolk County, Third District.

Decided on July 16, 2021

151 N.Y.S.3d 843

The Law Offices of Scott D. Gross, Esq., Attorneys for Petitioner, 400 Post Avenue, Suite 400B, Westbury, New York 11590

Burke & Burke, Esqs., PC, Attorneys for Defendant, 500 Bi-County Blvd., Suite 108, Farmingdale, New York 11735

C. Stephen Hackeling, J.

72 Misc.3d 1049

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,

72 Misc.3d 1050

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

151 N.Y.S.3d 844

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 be heard". Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed....

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