THE ACTUAL DECISION

If you read the recent story of the Long Island man who hasn’t paid his mortgage in 23 years, here is the recent decision that was in the news.

Diamond Ridge Partners LLC v. Hanspal, Date filed: 2021-09-14, Court: District Court, Nassau, Judge: Judge William Hohauser, Case Number: LT-6528/17:

DECISION ON MOTION

A. Procedural History and Statement of Facts In or about 1998, respondent Guramit Hanspal (“Hanspal”) purchased the property located at 2468 Kenmore Street, East Meadow, NY 11554 (“Kenmore Street”), and obtained a mortgage loan in order to finance this purchase. Following Hanspal’s almost simultaneous default on payment of the mortgage note, in May 2000 the original mortgagee obtained a judgment of foreclosure and sale in Nassau County Supreme Court. In 2011, and then again in 2018, the then-Petitioners obtained judgments of possession against Hanspal in February 2011 and in April 2018.1 During the interim period, apparently in an effort to forestall entry and/or enforcement of the judgments of possession. Hanspal filed at least six (6) bankruptcy petitions, all of which were dismissed. Undeterred by these dismissals or either judgment of eviction. Hanspal filed another bankruptcy petition in 2019. which too was dismissed. In addition. Hanspal has filed numerous other complaints against Petitioner (or its predecessors in interest), both in federal and state courts, each of which has been dismissed.2 During 2019, another purported Kenmore Street occupant (but not “tenant,” as the term is legally defined), a Boss Chawla (“Chawla”), filed multiple bankruptcy petitions during 2019 alone, also ostensibly to remain in possession of the Kenmore Street premises to which he had no discernabie legal right of possession. Like each of Hanspal’s petitions before, Chawla’s petitions were dismissed outright. Chawla has at no time provided any evidence that he is a lawful occupant of the Kenmore Street premises. Similarly, respondent Bhagwant Srichawla (“Srichawla”) also has not provided any evidence that he is a lawful occupant of Kenmore Street.3 Respondent Paur has not made any appearance in this matter, to any extent.

Following the dismissal of the myriad bankruptcy petitions, Hanspal filed a second motion to vacate the 2018 judgment of this Court which granted possession to Petitioner. As the Court then aptly opined:

Respondent has failed to justify his default for [not] appearing at trial…. Respondent had the opportunity to attend the trial and present his evidence…. Respondent lost the foregoing opportunity by defaulting at the trial. This history of this case going on for approximately 20 years must come to an end…”

Apparently, Hanspal did not appreciate the irony inherent in his failure to appear on his motion to vacate a default for his non-appearance. Nevertheless, in November 2020, Hanspal filed another Order to Show Cause for rehearing; this too was denied, again for Hanspal’s failure to appear

As this matter continued winding its serpentine meandering through the state and federal court systems, in April 2021 respondents Hanspal and Srichawla submitted “Tenant’s Declaration of Hardship During the COVID-19 Pandemic” (“Covid Declaration”), filed pursuant to the COVID 19-Emergency Eviction and Foreclosure Prevention Act [L 2020, ch 382] (“CEEFPA”).. On each such Covid Declaration, Hanspal and Srichawla checked only Box “A,” indicating that they sustained only financial hardship during the pandemic period. Further, neither Hanspal nor Srichawla noted the location at which they resided pursuant to any defined financial obligation. This case comes before this Court upon Diamond Ridge’s motion to invalidate the Covid Declarations filed by Hanspal and Srichawla.4

This matter was presented for oral argument on August 5, 2021, at which time Diamond Ridge presented testimony from Mr. Max Sold, a former representative, who testified, among other assertions, that none of the individual respondents had a leasehold / ownership interest, or had made payments of any kind, including for use & occupancy, since Diamond Ridge acceded to ownership of Kenmore Street.5 Although counsel for respondents appeared, Hanspal failed to do so, and no factual evidence was submitted in rebuttal for the Court’s consideration.6

B Legal Analysis

In addressing the issue of whether the instant Respondents qualify as “tenants” or “lawful occupants,” a “tenant” may be defined as “one who holds or possesses [premises] by any kind of right or title…. [or] one who has the temporary use and occupation of real property owned by another person (called the landlord’), the duration and terms of [the] tenancy being usually fixed by an instrument called a “lease” Blacks Law Dictionary, 11th Ed. Courts defining the scope of “tenant” as contemplated by CEEFPA generally have been “intentionally expansive,” Tzifil Realty Corp. v. Mazrekaj, 2021 NY Misc. LEXIS 3438 (Kings Co. 2021). As a result, courts have “qualified” an individual asserting a colorable succession claim (The Realty Enter LLC v. Williams. 2021 NYLJ LEXIS 360 (Civ.Ct. Queens Co. 2021, Index No 53712/18), a terminated superintendent (Mazrekaj. supra), an occupant liable for paying use and occupancy (Silverstein v. Huebner. 2021 NY Misc. LEXIS 4268 (Civ. Ct. Kings Co 2021)).

In this regard, “lawful occupant” has been described as a “component” of the definition of “tenant.” CIT Bank, N.A. v. Schiffman, 36 NY3d 550 (2021). In ascertaining the legislative intent, Court turns to the prefatory paragraphs of CEEFPA, which include: “It is, therefore, the intent of this legislation to avoid as many evictions as possible for people experiencing a financial hardship during the COVID-19 pandemic…. [a] limited, temporary stay is necessary….” L.202, ch 381,§3. However, the specific stay provisions of CEEFPA limit its protections to “tenants,” as defined in the statute, but not to other classes of respondents in eviction proceedings Given the differing usages within the confines of CEEFPA, the Court must consider that the state legislature deliberately limited the umbra of CEEFPA-protected parties. See in re Warren A., 53 AD2d 400 (2d Dept 1976).

Furthermore, given the relative recency of CEEFPA, there is scant case law addressing the issue of whether the mere filing of Covid Declaration presents an absolute bar to a landlord from proceeding with an eviction. However, in a recent instructive decision from Suffolk County, that Court cited to the plain language of the Covid Declaration, to the effect that the COVID declaration would be effective if and only if it was filed by a “person responsible for paying rent…. or any other financial obligation under a lease or tenancy agreement” Accordingly, the protections of the Covid Declaration would inhere to tenants, but not to those who have no financial obligation, such as holdover tenants following a foreclosure, who at most could be considered occupants at “sufferance,” if not outright squatters. Bibow v. Bibow, LT-466-19 (Dist. Ct. Suffolk Co. July 28, 2021).

Continuing, the Bibow court was quite prescient in its analysis, opining further that by not providing the landlord with the ability to challenge the validity of the Covid Declaration, that portion of the enabling statute was violative of the landlord’s due process rights. Citing to Mullane v. Central Hanover Bank, 339 U.S. 306 (1950), the Court found that the landlord was denied the most basic opportunity to be heard. As the Bibow court reasoned, “it would be incomprehensible to find that the [state] legislature would vitiate the constitutional premise of due process to allow a party to obtain a unilateral stay of eviction without resort to a judicial forum to hear the landlord’s assertion of a ‘standing’ objection to the same.”7 See also Southern Acquisition Co. LLC v. TNT. LLC. 71 Misc. 3d 1002; 2021 Slip Op 21804 (Sup Ct. Ulster Co. 2021).8

Approximately two weeks following the Bibow decision, the United States Supreme Court issued its decision in Chrysafis v. Marks, 2021 U.S. LEXIS 2635 There, the Supreme Court specifically enjoined enforcement of only Part A of CEEFPA, finding that allowing a tenant to self-certify financial hardship and precluding a landlord from contesting that hardship, violates the “Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” citing In re Murchison, 349 U.S. 133, 136 (1955). Since the plain language of CEEFPA did not provide a landlord with such ability to challenge a tenant’s self-certification of financial hardship, the Supreme Court invalidated any COVID Declaration relying on Part A alone.9

C. Conclusion

Although the salutary import of CEEFPA and related statutes cannot be denied, the legislative history is clear that their enaction derived from a unique pandemic afflicting the state, commencing in late 2019. The various moratoria on eviction proceedings were designed to prevent undue hardships befalling on those harmed by the pandemic’s pervasive impact. Just as clearly, CEEFPA and related statutes were not promulgated to serve as a mechanism to delay further the administration of justice in cases, such as this, pending for decades.10

Here, none of the respondents qualifies for CEEFPA protection either as a “tenant” or, alternatively, as a “lawful occupant” owing any financial obligation to Petitioner, be it called rent or use and occupancy.11 If anything. Respondents behavior, which reflect no payments of any kind for decades, augurs strongly against any protection under the CEEFPA statute, as this could not be considered a temporary issue warranting interim protection.12

Accordingly, in order to forestall any further delays, the Court re-issues a judgment of possession and warrant of eviction, without stay.

Dated: September 14, 2021

Footnotes

1. In December 2018, this Court granted Diamond Ridge's application to be substituted as Petitioner in this matter.

2. On at least one such occasion, Hanspal has been the subject of a sanctions award as a result of what that Court termed frivolous conduct in prolonging this matter

3. The Court has been made aware that prior to argument on this motion, respondent Srichawla tragically was fatally injured in an automobile accident. As a result, the balance of this opinion primarily relates to respondent Hanspal.

4. Consistent with prior action (or more appropriately, inaction), respondent Paur has not filed a Covid Declaration.

5. Diamond Ridge obtained ownership of Kenmore Street after purchasing the underlying mortgage note in or about 2018, and was properly substituted on motion as Petitioner in this matter.

6. At argument counsel for Srichawia maintained that in light of Srichawla's demise, his estate must be joined as an indispensable party, citing to Watersview Owners, Inc., v. Pacimeo, 13 Misc 3d 130(A) (App. Term 2nd & 11th Dists 2006) and Ryerson Towers, Inc. v. Estate of Laura Brown, 160 Misc 2d 107 (App Term 2nd & 11th Dists. 1994) in support thereof However, each case is distinguishable from the instant situation. Ryerson involved Mitchell-Lama housing and a proceeding brought following the issuance of a certificate of eviction after the tenant had passed away in Watersview supra, the issue revolved around a proceeding against a cooperative lessee, who clearly possessed a tenancy interest. The Court finds neither case persuasive in this matter in which no tenancy has been proven.

7. In a parallel to the case at bar, the Bibow court noted that the person filing the Covid Declaration failed to appear at the hearing.

8. For a more fulsome description of the divination of legislative intent vis-a-vis occupants see Kalikow Family Partnership. L P. v. Doe, 2021 N.Y. Misc LEXIS 4310 (Civ Ct Queens Co 2021), in which the Court determined that the operative use of "tenant," rather than "respondent" within the relevant section of CEEFPA was quite significant and in that matter, held that licensees were not 'lawful occupants" and thus not tenants entitled to protection under the CEEFPA.

9. Of necessity, this decision does not implicate the protections afforded by the Tenant Safe Harbor Act ("THSA") 2020 N.Y. Laws Ch 127, §§1. 2{2)(a) The THSA affords protections to residential tenants facing eviction for non-payment of rent between March 2020 and the expiration or rescindment of Executive Orders pertaining to Covid-19 relating restrictions Those protections do not apply in holdover proceedings, such as that at bar.

10. With some dismay, the Court notes Srichawla's contention that Diamond Ridge "has (advanced) no real reason why it should be in front of all other landlords in evicting Respondents." in that Diamond Ridge and its predecessors have been waiting for more than two decades.

11. Not only does Hanspal possess no leasehold interest, but he has been subject to two adverse judgments of possession in this matter's long history.

12. While this motion was sub judice, the on September 1 2021 New York State Legislature passed an extension/modification to CEEFPA S50001 which seeks to remedy the deficiency found in CEEFPA with regards to the perceived inability of a landlord to challenge a tenants self-certification of financial hardship Given that this Court finds that the instant Respondents fail to qualify either as "tenants" or "lawful occupants" within the meaning of CEEFPA or its recent modification, the Counrt further concludes that the protections included in the most current iteration of the moratorium do not inure to respondents benefit."

EVICTIONS AND FORECLOSURE MORATORIUM TO AUGUST 31

Not yet signed by the Governor, but here is the information from the NYS Senate:

"BILL NUMBER: S6362A

SPONSOR: KAVANAGH
 
TITLE OF BILL:

An act to amend chapter 381 of the laws of 2020 establishing the
"COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020", in
relation to extending the effectiveness thereof; and to amend chapter 73
of the laws of 2021 relating  to  establishing the  "COVID-19 Emergency
Protect Our Small Businesses Act of 2021", in relation to extending the
effectiveness thereof

 
PURPOSE:

Extends through August 31, 2021 the effectiveness of the statutory limi-
tations on eviction of residential and certain commercial tenants expe-
riencing financial hardship, limitations on certain foreclosures and tax
sales, and related provisions, which may otherwise expire after May 1,
2021.

 
SUMMARY OF PROVISIONS:

The bill would amend various provisions of Chapter 381 of the Laws of
2020 and Chapter 73 of the Laws of 2021, to extend various provisions
through August 31, 2021. The provisions that are extended include those
that:

*Allow residential tenants suffering a financial or health-related hard-
ship to file a hardship declaration, under penalty of perjury, with
their landlord or a court to prevent the filing of an eviction or stay
any eviction proceeding in progress, with exceptions for tenants who
persistently and unreasonably engage in behavior that substantially
infringes on the use and enjoyment of other tenants or occupants or
causes a substantial safety hazard to others;

*Allow mortgagors who own ten or fewer residential dwellings to file a
hardship declaration with their mortgage lender, other foreclosing
party, or a court to prevent the filing of a foreclosure action or stay
any foreclosure action in progress;

*Allow property owners who own ten or fewer residential dwellings to
file a hardship declaration to prevent local governments from engaging
in any tax lien sale or tax foreclosure;

*Allow commercial tenants that are residents of the state, independently
owned and operated, and not dominant in their field, and employ 50 or
fewer persons, to file a hardship declaration to prevent the filing of
any eviction or stay any eviction proceeding in progress;

*Allow mortgagors for properties where the owner or mortgagor owns ten
or fewer commercial units, is a business that is resident of the state,
independently owned and operated, and not dominant in its field, and
employs 50 or fewer persons to file a hardship declaration with their
mortgage lender, other foreclosing party, or the court to prevent the
filing of a foreclosure action or stay any foreclosure action in
progress; and

- Allow an eligible commercial property owner to file a hardship decla-
ration with any village, town, city, school district, county, or other
entity or person that conducts tax foreclosures or tax lien sales, to
stay such foreclosure or lien sale.

 
JUSTIFICATION:

Measures necessary to contain the spread of COVID-19 have brought about
widespread economic and societal disruption, placing the state in
unprecedented circumstances. Millions of residents have experienced
financial hardship due to such measures, which closed businesses and
schools and triggered high levels of unemployment and reductions of
income across the state. The pandemic has also interrupted court oper-
ations, and hampered the ability of parties to litigation to safely
travel to and enter a courtroom, retain and pay for counsel, participate
in settlement conferences, and engage in other activities that enable
New Yorkers to protect their rights and settle disputes.

On December 28, 2020, the legislature found that absent statutory action
to restrict residential evictions and foreclosures, hundreds of thou-
sands of residents would be at risk of losing their homes and that such
housing instability would exacerbate the already severe negative effects
of the COVID-19 pandemic, threatening the wellbeing of all New Yorkers.
In response, the legislature passed and the governor signed into law
chapter 381 of the laws of 2020, establishing the COVID-19 Emergency
Eviction and Foreclosure Prevention Act of 2020, to prevent residential
evictions among those who have experienced financial hardship during the
COVID-19 pandemic and those who cannot move due to an increased risk of
severe illness or death. That act also prevented residential foreclo-
sures among homeowners and small landlords who have experienced such
financial hardship. The eviction restrictions do not apply if a tenant
is persistently and unreasonably engaging in behavior that substantially
infringes on the use and enjoyment of other tenants or occupants or
causes a substantial safety hazard to others.

In January of 2021, the Legislature found similarly that absent legisla-
tive action thousands of small businesses would also face eviction or
mortgage or tax foreclosure due to measures necessary to contain the
spread of COVID-19. The legislature further found that ensuring small
businesses can survive in this unprecedented time is to the mutual bene-
fit of all New Yorkers and will help the state address the pandemic,
protect public health, and set the stage for recovery. To avoid mass
evictions and foreclosures of small businesses, the legislature passed
the COVID-19 Emergency Protect our Small Businesses Act of 2021 in Janu-
ary and the Governor signed the bill into law on March 9, 2021.

Most of the provisions of the COVID-19 Emergency Eviction and Foreclo-
sure Prevention Act of 2020 and the COVID-19 Emergency Protect our Small
Businesses Act of 2021 expire on May 1, 2021. On March 28, 2021, the
U.S. Centers for Disease Control and Prevention (CDC) issued an Order
extending through June 30, 2021 restrictions on residential evictions
that had been in place pursuant to prior CDC Orders issued on September
4, 2020 and January 29, 2021. In the March 28, 2021 Order, the CDC stat-
ed that the national rate of new COVID-19 cases "remains almost twice as
high as the initial peak in April of 2020 and transmission rates are
similar to the second peak in July 2020." The CDC further noted that
preliminary research in "states that implemented and lifted eviction
moratoria" has indicated "that evictions substantially contribute to
COVID-19 transmission." The CDC found that "the fundamental public
health threat that existed on September 4, 2020, and January 29, 2021
-the risk of large numbers of residential evictions contributing to the
spread of COVID-19 throughout the United States -- continues to exist.
It is imperative that public health authorities act quickly to ward off
an unprecedented wave of evictions, which would threaten new spikes" in
transmission "at a critical juncture in the fight against COVID-19."
The March 28, 2021 CDC Order explicitly provided that it does not
preclude states from "imposing additional requirements that provide
greater public health protections and are more restrictive" than the
CDC's requirements. Restrictions in New York and other states apply to
residential foreclosures as well as evictions, and many states, includ-
ing Connecticut, Hawaii, Illinois, Minnesota, Oregon, and Washington
have joined New York in enacting restrictions on filings of eviction
cases against tenants experiencing a hardship during the pandemic, as
well as restricting the actual execution of evictions.  As noted above,
New York has also enacted similar restrictions on commercial evictions
and foreclosures.

Current data demonstrates the need for continuing emergency public
health measures in New York. According to the CDC, New York's current
rates of COVID-19 transmission are among the highest in the nation.  In
its weekly data summaries, the CDC classifies transmission rates as
"high" if there are 100 or more new cases per 100,000 people. As of
April 15, 2021, the statewide rate in New York was 233 per 100,000
people. In its March 28, 2021 Order, the CDC stated that 37% of counties
nationally had a high rate of transmission and an additional 30% had a
"substantial" rate (50-99.9 cases per 100,000 people). As of April 15,
2021, CDC data show that 87% of counties in New York -- 54 of 62 coun-
ties, including all of the state's most populous counties -- had a high
rate of transmission and all of the other eight counties had a substan-
tial rate of transmission. No county in New York had a "moderate" or
"low" rate.

In April of 2021, the legislature passed and the governor signed into
law budget legislation directing the commissioner of the state office of
temporary and disability assistance to implement, as soon as practica-
ble, the COVID-19 Emergency Rental Assistance Program (CERAP). The
program will provide rental and utility assistance for households obli-
gated to pay rent on their primary residence who have experienced finan-
cial hardship due directly or indirectly to the COVID-19 pandemic. Such
assistance will cover up to twelve months of rent and utility arrears
and, for rent-burdened households, up to three additional months of
prospective rent. The budget authorized spending more than $2.4 billion
for CERAP, including federal relief funds and additional state funds.
The State budget also allocated $600 million for the Homeownership
Relief and Protection Program to provide assistance with mortgage, util-
ity, home energy, and other homeownership expenses during the pandemic.
To assist small businesses, the budget also included a historic $1
billion investment of state assistance to supplement federal aid,
providing $800 million for small business grants and $200 million in
small business tax credits. These programs and the federal and state
funds that support them will mitigate the adverse effects of the pandem-
ic on residential and commercial tenants and landlords.  Stabilizing
housing and small businesses, and minimizing court proceedings, continue
to be to the mutual benefit of all New Yorkers in that these steps will
help the state address the COVID-19 pandemic, protect public health, and
foster a full and equitable recovery. As such, an extension of approxi-
mately four months of the provisions of the COVID-19 Emergency Eviction
and Foreclosure Prevention Act of 2020 and the COVID-19 Emergency
Protect our Small Businesses Act of 2021 are necessary to protect the
public health, safety, and general welfare of the people of the state of
New York.

 
LEGISLATIVE HISTORY:

This is a new bill. It amends the effective dates of Chapter 381 of the
Laws of 2020 and Chapter 73 of the Laws of 2021.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

No direct, additional costs.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall be deemed to have been
in full force and effect on May 1, 2021; provided, however, that the
amendments to parts A and B of chapter 381 of the laws of 2020 made by
this act shall not affect the expiration of such parts and shall be
repealed therewith; and provided further, that the amendments to parts A
and B of chapter 73 of the laws of 2021 made by this act shall not
affect the expiration of such parts and shall be deemed to expire there-
with."

APPLICATION OF CEEFPA TO BE BROADLY CONSTRUED

CEEFPA is the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and, according to this court, applies to a tax lien foreclosure action.

NYCTL 2016-A TRUST v. NEIGHBORHOOD YOUTH & FAMILY SERVS., INC., 2021 NY Slip Op 21023 - Bronx Supreme Court February 5, 2021:

"...Accordingly, as a threshold matter, this Court must determine if the present action is stayed, either because the present action constitutes a foreclosure proceeding or an eviction within the meaning of CEEPFA.

This Court does not find that the present applications seeking a writ of assistance, and use and occupancy, constitute a foreclosure action for the purposes of CEEPFA. CEEPFA specifically applies to tax lien proceedings. (Part B, Subpart B, § 1.) However, the hardship declaration set forth in that section applies only to the owner of the property. It does not appear that any post-foreclosure proceedings, as such, are subject to any stay under CEEPFA. With respect to foreclosures generally, the CEEPFA does not provide for any type of stay following the execution of judgment, i.e., the sale. (Part B, Subpart A, § 8.) Consequently, even if CEEPFA encompasses this type of post-tax lien sale, by its terms, no stay is provided.

With respect to evictions, CEEPFA defines an "eviction proceeding" as "a summary proceeding to recover possession of real property under article seven of the real property actions and proceedings law relating to a residential dwelling unit or any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit." Part A, § 8(a)(ii) of the Act further provides that, "In any eviction proceeding, if the tenant provides a hardship declaration to the petitioner, the court, or an agent of the petitioner or the court, prior to the execution of the warrant, the execution shall be stayed until at least May 1, 2021. If such hardship declaration is provided to the petitioner or agent of the petitioner, such petitioner or agent shall promptly file it with the court, advising the court in writing the index number of all relevant cases." Such a hardship declaration has been filed in this case, with the defendant tenant Norma Minor alleging both financial hardship and significant health risk. (See NYSCEF Doc. No. 198.)

The scope of the "CEEFPA" with respect to evictions outside of the context of summary proceedings has already been considered in one reported decision. In Jacob Cram Coop., Inc. v Ziolkowski, (2021 NY Misc. LEXIS 246, 2021 NY Slip Op 30174(U) [Sup Ct, NY Co] [Debra A. James, JSC]), the court considered the application of the CEEFPA in the context of an ejectment action pursuant to RPAPL Art. 6 pending in Supreme Court. The Court concluded that an action for ejectment pending in Supreme Court is subject to and governed by CEEFPA. The Court reasoned:

"Plaintiff argues that the Act does not apply here because throughout the relevant sections of the Act only `proceedings' are referenced, not actions, and plaintiff therefore argues that the clear legislative intent was only to apply to evictions related to summary proceedings governed by Article 7 of the RPAPL, and to exclude plenary actions for ejectment. Plaintiff further asserts that the CPLR makes clear delineations between actions and proceedings and the procedures applicable to one are not applicable to the other. Defendant, now currently represented at the time of the hardship filing, argues that the plain meaning of the statute applies to this case.

"The court agrees with defendant that in spite of the failure of the Legislature to specifically use the term "action" as applied to landlord-tenant disputes, the term "eviction proceeding" as defined therein includes New York's current hybrid common law/statutory (RPAPL Art. 6) actions for ejectment as applied to residential tenancies. Plaintiff's interpretation limiting the applicability of the statute is contrary to the Act's definition of "eviction proceeding" as including "any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit." Other than a plenary action for ejectment, the court is unable to discern any other "proceeding" that the legislature could have intended

"Finally, if the Legislature intended the Act to apply to summary proceedings only, it would have stated that clearly without the need to create and define a new and broadened term of `eviction proceedings.'" (Jacob Cram Coop., Inc. v Ziolkowski, supra, 2021 NY Misc. LEXIS 246, *2-4.)

This Court agrees with the foregoing. The statement of legislative intent shows that the applicability of CEEFPA is to be broadly construed. The Legislature has stated that:

"COVID-19 presents a historic threat to public health. Hundreds of thousands of residents are facing eviction or foreclosure due to necessary disease control measures that closed businesses and schools, and triggered mass-unemployment across the state: The pandemic has further interrupted court operations, the availability of counsel, the ability for parties to pay for counsel, and the ability to safely commute and enter a courtroom, settlement conference and the like.

"Stabilizing the housing situation for tenants, landlords, and homeowners is to the mutual benefit of all New Yorkers and will help the state address the pandemic, protect public health, and set the stage for recovery. It is, therefore, the intent of this legislation to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19." (L. 2020, Ch. 381, Sec. 3).

The Court in Jacob Cram Coop., Inc. noted that CEEFPA contains a broad definition of eviction, ranging beyond summary proceedings under the RPAPL. This Court would add that the definition of "landlord" under the CEEFPA is similarly broad, and "includes a landlord, owner of a residential property and any other person with a legal right to pursue eviction, possessory action or a money judgment for rent, including arrears, owed or that becomes due during the COVID-19 covered period..." (CEEFPA, Part A, § 1(2).) This definition clearly encompasses a purchaser at a tax lien foreclosure sale as an "owner [or] person with a legal right to pursue [a] possessory action."

Because the defendant tenant has alleged both financial hardship, as well as significant health risk, the action is stayed at least until May 1, 2021.^[2] Other courts have noted that an allegation of significant health risk cannot be contested.

The defendants dispute whether the premises are subject to rent stabilization, and further, there are contested issues as to the condition of the premises and the existence of rent-impairing violations. Under these circumstances, use and occupancy pendente lite cannot be awarded without conducting a hearing. (See, e.g., Trump CPS LLP v Meyer, 249 AD2d 22, 670 NYS2d 854 [1st Dept. 1998] [ordering a hearing to determine reasonable value of use and occupancy where the parties disputed the appropriate amount]; Mushlam, Inc. v Nazor, 80 AD3d 471, 473, 916 N.Y.S.2d 25, 27-28 [1st Dept. 2020].) Because the action is stayed, no hearing can be conducted and no final determination can be made as to entitlement or amount of use and occupancy, if any.

Despite the foregoing, because the parties arguments concerned primarily the application of the CEEFPA, and no other issues relating to the statute, the foregoing is without prejudice to any appropriate application, by motion or otherwise, under CEEFPA."

THE HARDSHIP DECLARATION APPLIES TO EJECTMENT ACTIONS TOO

The State of New York on December 28, 2020, enacted the "COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020" (L 2020, Ch 381), (the "Act").  Part A, § 8(a)(ii) of the Act further provides "In any eviction proceeding, if the tenant provides a hardship declaration to the petitioner, the court, or an agent of the petitioner or the court, prior to the execution of the warrant, the execution shall be stayed until at least May 1, 2021. If such hardship declaration is provided to the petitioner or agent of the petitioner, such petitioner or agent shall promptly file it with the court, advising the court in writing the index number of all relevant cases."

In JACOB CRAM COOP., INC. v. ZIOLKOWSKI, 2021 NY Slip Op 30174 - NY: Supreme Court January 22, 2021, a coop board had an action in ejectment against the coop owner, not a summary proceeding. A warrant of possession was issued and then the coop owner filed a hardship declaration but the board claimed the Act only applied to summary proceedings. The court held otherwise:

"The court agrees with defendant that in spite of the failure of the Legislature to specifically use the term "action" as applied to landlord-tenant disputes, the term "eviction proceeding" as defined therein includes New York's current hybrid common law/statutory (RPAPL Art. 6) actions for ejectment as applied to residential tenancies. Plaintiff's interpretation limiting the applicability of the statute is contrary to the Act's definition of "eviction proceeding" as including "any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit." Other than a plenary action for ejectment, the court is unable to discern any other "proceeding" that the legislature could have intended. Additionally, the Act includes a specific statement of legislative intent that its applicability is to be broadly construed stating:

    "COVID-19 presents a historic threat to public health. Hundreds of thousands of residents are facing eviction or foreclosure due to necessary disease control measures that closed businesses and schools, and triggered mass-unemployment across the state The pandemic has further interrupted court operations, the availability of counsel, the ability for parties to pay for counsel, and the ability to safely commute and enter a courtroom, settlement conference and the like.

    Stabilizing the housing situation for tenants, landlords, and homeowners is to the mutual benefit of all New Yorkers and will help the state address the pandemic, protect public health, and set the stage for recovery. It is, therefore, the intent of this legislation to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19."

(L. 2020, Ch. 381, Sec. 3). Finally, if the Legislature intended the Act to apply to summary proceedings only, it would have stated that clearly without the need to create and define a new and broadened term of "eviction proceedings.""

NEW RULES - LANDLORD TENANT, FORECLOSURES, ETC. AND COVID-19

The COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (S.9114/A.11181) was signed into law yesterday. From the Governor's press release:

Residential Evictions

The Act places a moratorium on residential evictions until May 1, 2021 for tenants who have endured COVID-related hardship. Tenants must submit a hardship declaration, or a document explaining the source of the hardship, to prevent evictions. Landlords can evict tenants that are creating safety or health hazards for other tenants, and those tenants who do not submit hardship declarations.

Residential Foreclosure Proceedings

The Act also places a moratorium on residential foreclosure proceedings until May 1, 2021. Homeowners and small landlords who own 10 or fewer residential dwellings can file hardship declarations with their mortgage lender, other foreclosing party or a court that would prevent a foreclosure.

Tax Lien Sales

The Act prevents local governments from engaging in a tax lien sale or a tax foreclosure until at least May 1, 2021. Payments due to the locality are still due.

Credit Discrimination and Negative Credit Reporting

Lending institutions are prohibited from discriminating against a property owner seeking credit because the property owner has been granted a stay of mortgage foreclosure proceedings, tax foreclosure proceedings or tax lien sales. They are also prohibited from discriminating because the owner is in arrears and has filed a hardship declaration with the lender.

Senior Citizens' Homeowner Exemption and Disabled Homeowner Exemption

Local governments are required to carry over SCHE and DHC exemptions from the 2020 assessment roll to the 2021 assessment roll at the same levels. They are also required to provide renewal applications for anyone who may be eligible for a larger exemption in 2021. Localities can also set procedures by which assessors can require renewal applications from people who the assessors believe may no longer be eligible for an exemption in 2021. Recipients of the exemption do not have to file renewal applications in person.