Shi Gan Zheng v. Guiseppone, 2022-50271

CourtNew York Civil Court
Writing for the CourtHON. ELEANORA OFSHTEIN, JHC
PartiesShi Gan Zheng, Petitioner, v. John Guiseppone; LAUREN AUFERI, "JOHN DOE" AND "JANE DOE", Respondent(s)
Docket Number2022-50271,L&T Index 052888/19
Decision Date14 April 2022

Shi Gan Zheng, Petitioner,

John Guiseppone; LAUREN AUFERI, "JOHN DOE" AND "JANE DOE", Respondent(s)

No. 2022-50271

L&T Index No. 052888/19

Civil Court of the City of New York, Richmond County

April 14, 2022

Unpublished Opinion

Petitioner's attorney: Law Offices of Rina Milos:

Respondent's attorney: Staten Island Legal Services by Mr. Puleo, Esq:

for Lauren Auferi/Auteri only.


Recitation, as required by CPLR §2219(A), of the papers considered in the review of this motion:

Papers & NYSCEF Document
Respondent's Post-Eviction OSC w/Affirmation/Affidavit/Exhibits No. 29-37
Opposition #39
Reply #40-43

Decision/Order upon cited papers and after argument, is as follows:

Respondents were evicted from this unregulated apartment after Petitioner executed its warrant. Five days before the eviction, Respondent Lauren Auferi, a/k/a Auteri ("Auferi"), applied for the COVID-19 Emergency Rental Assistance Program ("ERAP") but failed to notify Petitioner, Petitioner's attorney, the Court, or the Marshal's office.

Respondent Auferi filed this Post-Eviction Order to Show Cause ("OSC") by her attorney, seeking restoration of the tenancy, placement of the case on the ERAP calendar to await determination, or, in the alternative, restoration of the tenancy and a stay for Respondents to find new housing. Petitioner opposes the motion but agreed to limited interim access for removal of personal property. The issues raised in this case leave a number of unanswered questions, including whether the "ERAP statute" [1] allows for any assessment by this Court once an ERAP application is filed, whether the statute provides a mechanism by which to analyze whether a Respondent is covered by the statute, whether the stay provided by the statute begins at filing or upon notice (and notice to whom and by whom), and whether sufficient cause has been shown in this case to restore Respondents to possession.

This summary non-payment proceeding commenced in December 2019, wherein the petition claimed that $14, 000 was due for the period from May 2019 through November 2019, at a rent of $2, 000 per month. After Respondents John Guiseppone and Lauren Auferi filed their answer, the parties conferenced the case in court and entered into a settlement on January 10, 2020. The agreement, which was so-ordered by the Court and never contested by the parties, converted the proceeding from a nonpayment to a holdover, and Respondents agreed to vacate the premises by March 31, 2020. Petitioner was granted a judgment of possession and warrant forthwith, and agreed to waive arrears upon Respondents' timely vacatur. The agreement further noted that Respondents' failure to vacate will result in the Petitioner's withdrawal of its waiver of rent.

Although the warrant issued, the COVID-19 pandemic interrupted Petitioner's ability to evict when Respondents failed to vacate by March 31, 2020. Instead, a number of delays and procedural changes associated with the pandemic required Petitioner to file a motion, on notice, for permission to execute its warrant of eviction. Pursuant to Administrative Orders and Directives, Petitioner brought its motion on notice which was made returnable by the Court on December 15, 2020. Between December 15, 2020 and April 30, 2021, the case was adjourned and notices were mailed to Respondents by the Court (see NYSCEF documents #12, 13 and 13-1). Staten Island Legal Services filed a Notice of Appearance for Auferi on April 7, 2021, but did not file opposition to Petitioner's motion to execute the warrant.

Pursuant to DRP requirements, the Court held a conference on April 30, 2021, and subsequently granted Petitioner's motion to execute the warrant after service of the Marshal's notice (decision dated May 4, 2021). This Court notes that Petitioner's motion, including the affidavit in support of its motion, sought only possession of the premises, not use or occupancy or arrears (see NYSCEF document #6).

In the afternoon of February 7, 2022, Respondents' attorney filed an OSC (via NYSCEF) seeking a stay of the eviction, stating that an ERAP application had been filed five days earlier. The eviction was completed before 9:15 the following morning, while the Court was reviewing the application. The OSC was denied without prejudice to the refiling of this Post-Evict OSC, which was filed February 22, 2022.

The Post-Evict OSC seeks restoration of Respondents to possession, arguing that since an ERAP application had been filed prior to the eviction, restoration was necessary and appropriate. [2] Petitioner opposes, arguing that after the conversion of the case to a holdover, no rent or use and occupancy had been sought, and that Respondents were acting in bad faith by submitting an ERAP application at the last possible moment. Petitioner states that they had not been notified of an ERAP filing until after the eviction, and reiterates that they would reject any ERAP funds since their sole interest is to retain possession of the apartment. Additionally, Petitioner argues that the execution of the warrant severed any relationship between Petitioner and Respondents, and that since Respondents had no obligation to pay rent or use and occupancy, they do not fall under the class of occupants that would qualify for the stay provisions of the ERAP statute. The Court's analysis, therefore, must begin with the ERAP statute. [3]

The ERAP Law (signed April 2021, L. 2021, c. 56, Part BB) established a program for the distribution of federal funds for rent relief, implemented and administered by the Office of Temporary and Disability Assistance (OTDA). The ERAP statute was amended September 2, 2021 (L. 2021, c. 417, Part A) with the following sections [4], as relevant to this motion:

Restrictions on eviction: (Subpart A §8, amended by L. 2021, c. 417, Part A, §4) Except as provided in 9-a, as added by the amendments, "any pending eviction proceeding", which includes holdover or nonpayment cases, "all proceedings shall bestayed pending a determination of eligibility."
Eligibility: (L. 2021, c. 56, Part BB Subpart A, §5)
ERAP eligibility standards and priorities to be established by OTDA, including fouritemized

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