Papandrea-Zavaglia v. Arroyave, 2022-22109

CourtNew York Civil Court
Writing for the CourtHON. BRUCE E. SCHECKOWITZ J.H.C.
PartiesImmacolata Papandrea-Zavaglia, Petitioner, v. Jose Arroyave, KRYSTAL HERNANDEZ-ARROYAVE, "JOHN DOE" and/or "JANE DOE", Respondent(s).
Docket NumberIndex 303636/21,2022-22109
Decision Date07 April 2022

Immacolata Papandrea-Zavaglia, Petitioner,

Jose Arroyave, KRYSTAL HERNANDEZ-ARROYAVE, "JOHN DOE" and/or "JANE DOE", Respondent(s).

No. 2022-22109

Index No. 303636/21

Civil Court of the City of New York, Kings County

April 7, 2022

Petitioner: Andrea Balsamo, Esq.

Respondent Hernandez-Arroyave: RiseBoro/LEAP by Dane Marrow, Esq.


Recitation, as required by the CPLR § 2219(a), of the papers considered in the review of this motion to vacating the automatic stay imposed by Respondent's ERAP filing, granting summary judgment pursuant to CPLR § 3212, and awarding Petitioner reasonable attorneys' fees.


Notice of Motion & Affidavits Annexed 1

Notice of Cross-Motion & Affidavits Annexed

Answering Affidavits 2

Replying Affidavits 3


Memorandum of law

In this holdover proceeding, the petitioner, Immacolata Papandrea-Zavaglia ("Petitioner") seeks to recover possession of the unregulated premises located at 1316 72nd Street, Apt. 1., Brooklyn, New York 11228 ("Premises") from Jose Arroyave, Krystal Hernandez-Arroyave, John Doe, and Jane Doe (collectively "Respondents") on the grounds that Petitioner has terminated Respondents' tenancy. See Notice of Petition, Petition, 90 Day Notice of Termination and Affidavits of Service for the 90 Day Notice of Termination and the Notice of Petition and Petition. This proceeding first appeared on the court's Intake Part calendar on January 3, 2022 and was referred to a resolution part. On January 24, 2022, the proceeding was transferred to the newly created Small Property Part ("SPP") and adjourned to February 3, 2022. On the return date, Petitioner appeared by counsel, Andrea Balsamo, Esq., and Respondent Hernandez-Arroyave appeared by counsel, RiseBoro LEAP by Dane Marrow, Esq. On the record, counsel for Respondent Hernandez-Arroyave represented that his client had filed an application for emergency rental assistance through ERAP and asserted the instant proceeding should be stayed until a final determination was made on her application by the Office of Temporary and Disability Assistance ("OTDA"). Petitioner opposed the application for the stay and stated Respondent had been provisionally approved for ERAP, but Petitioner did not intend to accept any funds from ERAP, so the stay was unnecessary.This court adjourned the proceeding to March 3, 2022 and directed Respondent Hernandez-Arroyave to file an answer and for Petitioner to move to vacate the stay. Upon letter application to the court, and consent by Respondent, the instant proceeding was adjourned to March 10, 2022.

Petitioner now moves to vacate the automatic stay imposed by Respondent Hernandez-Arroyave's application for rental assistance through ERAP, for summary judgment pursuant to CPLR § 3212, and for attorney's fees. Related to her prayer for relief to lift the automatic stay, Petitioner asserts that she has elected not to participate in the ERAP program and is willing to waive the one hundred and eighty (180) day period allowed under the program for the submission of necessary documents. She further argues that the stay imposed by ERAP is a violation of Petitioner's due process rights similar to that of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (hereinafter "CEEFPA"), as adjudged by the United States Supreme Court. Landlord represents Respondent Hernandez-Arroyave was notified that Petitioner intended to waive any rights to collect ERAP funds so that holdover may proceed. Further, Petitioner asserts she is entitled to summary judgment, as the premises is a two-family house, not subject the NYC Rent Control laws or governed by the Rent Stabilizations Laws of 1969, 1974, and 2019, and since the tenancy has been terminated, Respondents do not have any statutory right to remain in the Premises. Respondent opposes and avers it is outside the Housing Court's jurisdiction to consider Petitioner's argument, as landlord seeks to challenge the constitutionality of Section 7 of Subpart A of Part BB of chapter 56 of the laws of 2021, as amended by Section 4 of Part A of the Chapter 417 of the laws of 2021 ("ERAP statute"), which stays evictions upon the filing of an ERAP application until OTDA makes a final determination about Respondent's eligibility. Respondent posits Petitioner, in effect, is seeking a declaratory judgment as to the rights of the parties,...

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