More Eviction Cases Restarting While Tenants Await ERAP Determinations

New York’s Emergency Rental Assistance Program states that pending applications to the primarily federally funded program pause all eviction proceedings, as long as the tenant is not found to be causing a persistent nuisance. New York is among several states to pause cases at least temporarily while such applications are being processed, to prevent premature evictions.

However, some judges have said they have the authority to lift the stay or pause. Here are some cases where judges have said owners can restart eviction cases while tenants await determinations on their applications for pandemic rental assistance. In many of these types of cases, the judges reasoned that to delay the cases further would be “futile” and to keep them on hold would be “absurd.”

2986 Briggs LLC v. Evans

This case from March is frequently cited to make the case for judicial intervention in ERAP cases. Here the court ruled that while the stay language in state law seems “absolute … to find it to be so would raise doubts as to the statute’s constitutionality.” Owners have a due process right to challenge the stay. According to the facts of the case, the owner sued to evict apartment occupants as “licensees” after the unit’s rent-stabilized tenant died. There had been no showing that the occupant was a tenant or was obligated to pay rent. The ERAP law referred only to “rent” due under a written or oral rental agreement [Index No. L&T 308118/21, 2022 NY Slip Op 50215(U), LVT #31993 (Civ. Ct. Bronx; 3/22/22)].

Kelly v. Doe

Another case decided in March involves a situation in which the owner alleged the applicants were squatters on the property. The owner argued that the occupant didn’t qualify as a “tenant” as defined by the ERAP law. The occupant had been evicted in 2019, but after purchasing the building, the owner discovered that the apartment locks had been removed and the occupant had broken into the unit and moved back in. The owner didn’t seek rent or use and occupancy from the occupant. Lifting the automatic ERAP stay, the judge wrote, “To allow individuals, alleged to be squatters, who are not tenants, the benefit of a stay provision of ERAP would be futile and would lead to an absurd result, not contemplated by the statute” [Index No. LT 308750/20, 2022 NY Slip Op 22077, LVT #32015 (Civ. Ct. Kings; 3/18/22)].

Barker v. Cruz

In this case from May, the owner sued to evict a tenant when the tenant’s lease expired and claimed that the unit was needed for family use. The tenant pointed out that he had filed an ERAP application before the owner started the holdover proceeding and that the case therefore must be stayed. The court granted the owner’s request to lift the ERAP stay, finding that a landlord must be allowed to at least commence a proceeding where the stay could be challenged in order to provide due process. The judge reasoned, “In analyzing the statute, numerous courts have allowed vacatur of the ERAP stay to avoid inequity or fraud or absurd or futile results” [Index No. L&T 312920/21, 2022 NY Slip Op 50397(U), LVT #32087(Civ. Ct. Bronx; 5/13/22)].

Valsac 908 LLC v. Crespo

This case from June involves an owner filing an eviction lawsuit against the former super, who lived in an apartment at the building as an incident of employment. It was undisputed that the super never paid rent. A stay pending an ERAP application in a case where use and occupancy/rent was never sought would be futile, since any approval of ERAP funds wouldn’t result in the preservation or creation of a tenancy. The judge stated, “Moreover, it is not disputed that respondent has never paid a weekly or monthly amount of rent in consideration for the use and occupancy of the apartment. In fact, respondent does not pay rent for the premises in consideration for his job as superintendent” [Index No. 307057/2021, 2022 NY Slip Op 50484(U), LVT #32144 (Civ. Ct. NY; 6/10/22)].

Park Tower S. Co. LLC v. Simons

In this case decided in late June, an owner sued to evict apartment occupants after the rent-stabilized tenant died. One of the occupants had filed an ERAP application, which stayed the case. And the occupant received a provisional approval for ERAP in November 2021. The court found that the “provisional” approval of an ERAP application—that is, approval by the state Office of Temporary and Disability Assistance (OTDA) without payment because the landlord refused to accept the funds—dissolved the ERAP stay and that an eviction case could therefore proceed on the court’s calendar. The court noted that its interpretation of the ERAP law here differed from that expressed by OTDA on the agency’s website [Index No. 302220/2020, 2022 NY Slip Op 22192, LVT # 32141 (Civ. Ct. NY; 6/21/22)].

How to Register Rents with DHCR

for ERAP Recipients

If you’ve accepted ERAP payments, you may be confused on how to register those rents with the DHCR for those apartments. The legal rent provided in the lease or lease renewal should be registered. This rent amount includes all lawful rent increases, including lease renewal, individual apartment improvements, and major capital improvements, even if they are not being collected due to the receipt of ERAP assistance.

However, the frozen rent that is actually being collected due to ERAP should be entered in the registration space termed “Actual Rent Payment by Tenant.” On the form, next to the field that indicates the reason why the lower rent is being accepted, the owner should write “ERAP.”