Civil Court of the City of New York, Kings County, June 14, 2021

Philip Orner C.P.A. Attorney At Law, Flushing (Felipe E. Orner of counsel), for petitioner.

Brooklyn Legal Services, Brooklyn (Humbert Wong of counsel), for respondent.

The decision and order on petitioner's motion to vacate the stay resulting from respondent's filing of a COVID-19 hardship declaration is as follows:

[*2]Tzifil Realty Corp. (petitioner) commenced this holdover proceeding against Hassan "Andy" Mazrekaj (respondent), seeking possession of 922 East 15th Street, Apt. 1C, Brooklyn, NY 11230 (premises) on the grounds that petitioner terminated respondent's employment as superintendent of the subject building. On December 28, 2020, while the proceeding was pending in the Resolution Part, the Governor signed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) (L 2020, ch 381) into law. CEEFPA initially stayed all summary proceedings through May 1, 2021, for certain occupants of real property who filed a "hardship declaration" with the court pursuant to part A, § 6 of CEEFPA (L 2020, ch 381, § 3). CEEFPA was subsequently amended to extend this stay through August 31, 2021. (2021 NY Senate-Assembly Bill S6362, A7175.)

This proceeding was transferred to Part O for trial on May 11, 2021. On that day, this court held a pretrial conference with the parties and adjourned the proceeding for trial. On May 12, 2021, respondent filed a hardship declaration, pursuant to CEEFPA, and checked the box corresponding to the following declaration:

"A. (x) I am experiencing financial hardship, and I am unable to pay my rent or other financial obligations under the lease in full or obtain alternative suitable permanent housing because of one or more of the following:

"1. Significant loss of household income during the COVID-19 pandemic.

"2. Increase in necessary out-of-pocket expenses related to performing essential work or related to health impacts during the COVID-19 pandemic.

"3. Childcare responsibilities or responsibilities to {**72 Misc 3d at 750}care for an elderly, disabled, or sick family member during the COVID-19 pandemic have negatively affected my ability or the ability of someone in my household to obtain meaningful employment or earn income or increased my necessary out-of-pocket expenses.

"4. Moving expenses and difficulty I have securing alternative housing make it a hardship for me to relocate to another residence during the COVID-19 pandemic.

"5. Other circumstances related to the COVID-19 pandemic have negatively affected my ability to obtain meaningful employment or earn income or have significantly reduced my household income or significantly increased my expenses. To the extent that I have lost household income or had increased expenses, any public assistance, including unemployment insurance, pandemic unemployment assistance, disability insurance, or paid family leave, that I have received since the start of the COVID-19 pandemic does not fully make up for my loss of household income or increased expenses."

This court stayed this proceeding in compliance with the statute.

Petitioner filed the instant order to show cause to vacate the stay on the grounds that respondent is not covered by CEEFPA, and cannot utilize a hardship declaration to stay the trial. Petitioner argues that the language of the hardship declaration excludes occupants who are not tenants pursuant to a lease agreement, because it contains the word "tenant" and not "occupant." Specifically, the hardship declaration begins with the words "Notice to Tenant" and includes the sentence, "I understand that I must comply with all other lawful terms under my tenancy, lease agreement or similar contract." Petitioner maintains that the words "tenant" and "rent" and "lease" in the statute indicate that the New York State Legislature purposely intended to exclude from CEEFPA's coverage occupants who do not have lease agreements with their landlords. Petitioner further argues that respondent never paid rent or use and occupancy. It is undisputed that this proceeding is predicated upon termination of respondent's employment, and that respondent has not paid use and occupancy and does not have a lease agreement for the [*3]premises.

Respondent relies upon CEEFPA's definition of "tenant" as "a residential tenant, lawful occupant of a dwelling unit, or{**72 Misc 3d at 751} any other person responsible for paying rent, [or] use and occupancy." (See L 2020, ch 381, § 3, part A, § 1 [3].) Respondent maintains that when the New York State Legislature enacted CEEFPA, it was intended to cover as many individuals as possible in order to prevent evictions during the COVID-19 pandemic. Therefore the statute should be read broadly to carry out this purpose.

In a recent holdover summary proceeding, Realty Enter. LLC v Williams, the Honorable Kimon Thermos ruled that because the respondent occupant was claiming succession rights to the subject apartment, he could file a hardship declaration and was protected by the CEEFPA stay of eviction proceedings. Notably, the court held respondent did not need to be in privity of contract with the landlord to be protected from eviction under CEEFPA. (Realty Enter. LLC v Williams, NYLJ, Apr. 28, 2021 at 17, col 3, 2021 NYLJ LEXIS 360 [Civ Ct, Queens County 2021].)

Similarly, in Silverstein v Huebner (2021 NY Slip Op 31992[U] [Civ Ct, Kings County 2021]), the Honorable Jack Stoller rejected petitioner's argument that CEEFPA only applied to tenants, and not occupants. The court held that "[p]rivity of estate is not required for liability for use and occupancy. Rather, occupancy is all that gives rise to liability for use and occupancy as a matter of quantum meruit." (Id. at *2, citing Eighteen Assoc. v Nanjim Leasing Corp., 257 AD2d 559 [2d Dept 1999].) In Huebner, an occupant remained in possession after the tenant of record vacated the premises and filed a hardship declaration during the pendency of a holdover proceeding. The court found that the occupant was entitled to a stay of the trial, although they did not have a lease with the landlord, because they were incurring liability for use and occupancy for the subject apartment.

This court agrees that the definition of "tenant" in CEEFPA is intentionally expansive. Section 3 of the act (L 2020, ch 381) states that the legislature intends to "avoid as many evictions . . . as possible" for people experiencing pandemic-related hardships or who have difficulty moving. Indeed in matters of statutory interpretation, legislative intent is the "great and controlling principle." (Silverstein v Huebner at *3, citing Matter of Sedacca v Mangano, 18 NY3d 609, 615 [2012].)

Here, respondent and his family have occupied the premises for over 10 years and petitioner is seeking a judgment against respondent for use and occupancy in this proceeding. In fact,{**72 Misc 3d at 752} petitioner filed a motion before the Honorable Malikah Sherman, for an order compelling respondent to pay use and occupancy pendente lite.^[FN*] Accordingly, by petitioner's own admission, respondent fits squarely within CEEFPA's definition of "tenant" as "any other person responsible for paying rent, [or] use and occupancy." The proceeding is therefore stayed by virtue of respondent's filing of the hardship declaration. This proceeding will be restored to the court's calendar on September 15, 2021, at 10:00 a.m. for trial.