LANDLORD AND TENANT AND ERAP AND DELAY

KENNEDY PLAZA TOWER, LLC v. Leffler, 2023 NY Slip Op 50854 - Utica City Court 2023:

"The only new substantive argument contained within the tenant's motion relates to whether the landlord can continue with this eviction proceeding despite a pending ERAP application. In this matter the tenant submitted ERAP relief on February 21, 2022 [Application Number: 01BVH] and neither party contests the absence of an ERAP determination. On June 9, 2023, the attorney for the landlord argued that despite the pending ERAP application, any stay relative to this proceeding is not applicable under the New York Emergency Rental Assistance Program of 2021. On August 3, 2023, counsel further argued that Kennedy Tower LLC has accepted no money through ERAP, both parties have complied with requests made by the program for certain documentation, and ERAP would consider such application `last' due to the subsidized nature of the housing. Mr. Levitt also argued that even if ERAP paid funds, it would not cover a substantial amount of back rent due, which in turn allows for this summary proceeding to continue. The tenant argued the petitioner `had no grounds' to be in court as they previously accepted funds from New York State in excess of $100,000.00 in violation of the `law' and administrative orders. Mr. Leffler added that the petitioner and counsel did not have `clean hands' requiring dismissal of the action.

Upon review of all applicable statutes and arguments of the parties, the court has determined to lift the stay as it relates to this proceeding as no grounds exist to preclude the issuance of a warrant of eviction. To support this conclusion the court relies upon the plain language of Part BB, Section 8, as amended by L 2021, c417, part C, subpart A, Section 4 entitled "Restrictions on Eviction" which sets forth the following:

"proceedings for a holdover or expired lease, or non-payment of rent or utilities that would be eligible for coverage under this program shall not be commenced against a household who has applied for this program or any local program administering federal emergency rental assistant program funds unless or until a determination of ineligibility is made."

the statute goes onto state:

"[If such eviction proceedings are commenced] . . 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."

The court will breakdown each provision to allow for comprehensive findings herein. The initial language concerning restrictions on evictions, precludes a summary proceeding from being commenced if an ERAP application has been made, while the second provision provides for a stay of actions where an ERAP application is made after commencement. It is important to further recognize Section 9 of ERAP which states "payments shall be made for rental payments or rental and utility arrears accrued on or after March 13, 2020. No more than 12 months of rental and/or utility assistance for arrears and 3 months of prospective rental assistance may be paid on behalf of any eligible household". The court agrees with the finding in Greenburgh Housing Authority v. Porter, ___ NYS3d ___, 2023 WL 2640351, 2023 NY Slip Op 23076 [Town of Greenburgh Just. Ct. 2023]) that when reading the "Restriction on Eviction" portion of the statue in conjunction with the "Payments" portion, the statute prohibits "the commencement of a non-payment [or holdover] proceeding against a renter who has applied for ERAP and has fifteen months or less of arrears". In the event the tenant had more than fifteen months of arrears the landlord may commence a summary proceeding in spite of a pending ERAP application as there are certain months not eligible for coverage under the program.

Turning to the second provision, the statute provides for a stay of the proceedings post-commencement, and the parties are awaiting a determination of eligibility of an ERAP application. Tenants, however, cannot enjoy perpetual stays while awaiting ERAP determinations. The plain language of the statute supports this determination as it clearly connects the stay to the eligibility window of fifteen months. Although caselaw finds itself in a sort of REM phase of jurisprudence, trial level courts have provided some lucid decisions on this issue. In EG Mt. Vernon Preservation LP v. Duncan, 77 Misc 3d 1226(A) [Mount Vernon City Ct., 2023], it was held "Equity and fairness dictates that a lift of the stay is warranted for the months due and owing over the 15 months that ERAP would cover" and the intent of the legislation "was only to provide a stay of evictions for occupants eligible for coverage". After undergoing an analysis of the ERAP statute, the court in Horizon Realty of Mt. Vernon, LLC v. Dabbs, 77 Misc 3d 1233(A) [Mount Vernon City Ct., 2023], also held that while "some 18 months after submitting his [ERAP] application, respondent's application remains pending. His eligibility has not been determined and he has not received a provisional approval letter. Based upon equity considerations, this court lifts the ERAP stay at this time." Here, the underlying proceeding is based upon the tenant holding over, the circumstances are quite similar, and the same principles apply. As such, since the ERAP application in this matter was made on February 21, 2022, the maximum period of eligibility would only extend to May of 2023.

Therefore, since the applicable stay window has passed, the court shall proceed in determining whether it should issue a warrant of based upon the proof submitted. While the petitioner has not received any rent from the tenant in over three years, any eligibility for subsidies through the Officer of Temporary and Disability Assistance or Section 8 does not preclude lifting the stay imposed by ERAP. (Bay Park Two-LLC v. Pearson, 77 Misc 3d 534 [Civ. Ct., Kings County, 2022])"