Landlord v. Tenant: June 2022

PROCEDURE—COURT

Court Lifts ERAP Stay of Holdover Proceeding Against Occupant

Landlord sued to evict apartment occupants as "licensees" after the unit's rent-stabilized tenant died. Shortly after landlord filed the holdover petition in August 2021, one of the occupants filed a Hardship Declaration. The Hardship Declaration stayed the proceeding until Jan. 15, 2022, by law. Landlord then asked the court to restore the case to the court's calendar for trial. Occupant got an attorney and advised the court that he'd filed an ERAP application that was under review.

Landlord then withdrew its motion to restore and instead filed a motion to lift the automatic stay imposed by the ERAP law. Landlord argued that the stay imposed by the ERAP law was an unconstitutional violation of landlord's due process rights under the Fifth and Fourteenth amendments of the U.S. constitution. Landlord also claimed that ERAP eligibility was irrelevant to this holdover proceedings against an occupant whose license to reside in an apartment expired upon the death of the tenant. Landlord also argued that the court had the authority to find that the occupant wasn't eligible for ERAP funding or that an ERAP stay here was futile because the occupant's license expired in any event when tenant died.

The court identified the key questions here as whether it had the authority to vacate an ERAP stay and, if so, whether it should do so in this case. The court ruled that it did have such authority and vacated the stay. There had been no showing that the occupant was a tenant or occupant obligated to pay rent. It didn't matter that landlord sought use and occupancy from the occupant while the case was pending. The ERAP law referred only to "rent" due under a written or oral rental agreement. The court lifted the ERAP stay and restored the case for a conference. The case could continue for a trial on other issues raised by the parties. The court also found it unnecessary to decide landlord's constitutional claims. 

• 2986 Briggs LLC v. Evans: Index No. L&T 308118/21, 2022 NY Slip Op 50215(U)(Civ. Ct. Bronx; 3/22/22)

Pending ERAP Application Won't Delay Eviction Proceeding for Former Super

Landlord sued to evict the building's former superintendent after the super's employment was terminated in September 2021. The super lived in an apartment in the building as an incidence of his employment and didn't pay rent. Among other things, landlord claimed that the super was persistently and unreasonably behaving in a way that substantially infringed on the use and enjoyment of other tenants or causing a substantial safety hazard to others, including the landlord and tenants. Landlord was also unable to install a new super in the apartment while the old super remained.

In October 2021, the super filed a Hardship Declaration. In January 2022, the super filed an ERAP application. Landlord asked the court to lift any stays resulting from the Hardship Declaration and ERAP application.

The court noted that the Hardship Declaration was moot effective Jan. 15, 2022. The court otherwise ruled for landlord and lifted the ERAP stay. The super had no lawful obligation to pay rent at any time. His possession of the apartment was purely incidental to his now terminated employment. Landlord stated that it wouldn't participate with ERAP on the super's behalf and wouldn't create a tenancy. The ERAP site also showed that the super hadn't submitted "all tenant information and documentation verified." So, NY State couldn't complete the super's ERAP application and would likely deny it for failure to supply the required information. It appeared that the super filed the ERAP application simply to delay the proceeding.  The court set a date for placement of the case on its calendar. 

• Karan Realty Assoc. LLC v. Perez: Index No. LYT306418/21, 2022 NY Slip Op 22093 (Civ. Ct. Queens; 3/25/22)

ERAP Stay Obtained by Squatter Is Lifted by the Court

Landlord sued to evict apartment occupant after serving a 10-day notice to quit in September 2021. The occupant appeared in court and, since she had filed an ERAP application, the case was stayed. Landlord asked the court to vacate the ERAP stay and argued that the occupant didn't qualify as a "tenant" as defined by the ERAP law. Landlord pointed out that the bank that previously owned the building as a result of foreclosure had obtained a judgment of possession against occupant in June 2019. Occupant had been evicted in 2019, but after purchasing the building, landlord discovered that the apartment locks had been removed and occupant had broken into the unit and moved back in. Landlord didn't seek rent or use and occupancy from occupant.

The court ruled for landlord. A stay pending an ERAP application in a case where use and occupancy/rent was never sought and would be futile, since any approval of ERAP funds wouldn't result in the preservation or creation of a tenancy. The court found that the ERAP stay didn't apply to allow individuals, claimed to be squatters, who weren't tenants the benefit of a stay provision. The result would be absurd.

• Kelly v. Doe: Index No. LT 308750/20, 2022 NY Slip Op 22077 (Civ. Ct. Kings; 3/18/22)

Landlord Can Seek Additional Rent Arrears After ERAP Pays Partial Amount

Landlord commenced an eviction proceeding in September 2020, which was stayed first by the eviction moratorium, and then as a result of tenant's ERAP application filed in June 2021. In February 2022, landlord asked the court to vacate the ERAP stay. While the request was pending, ERAP deposited payment to landlord "under protest" of 15 months of rent arrears. But nine months of rent arrears remained unpaid and that court addressed whether acceptance by landlord of the partial payment constituted a waiver as to the remaining rent arrears.

The court ruled for landlord, finding that to interpret the ERAP statute to mean that the landlord was waiving other rent due would result in an "impairment of private contracts," in violation of the landlord's constitutional rights. So, the court vacated the ERAP stay and ruled that tenant must pay the remaining arrears by May 1, 2022, or face a money judgment and judgment of possession for landlord.

• Barton v. Bixler: Index No. LT-156-20, 2022 NY Slip Op 50228(U) (Dist. Ct. Suffolk; 3/30/22)