Civil Court of the City of New York, Bronx County, October 18, 2021

Geovanny Fernandez, Bronx, for petitioner.

The Legal Aid Society, Bronx (Jason M. Hadley of counsel), for respondent.

For the reasons stated below, petitioner's motion for an order invalidating respondent's hardship declaration, issuing a warrant of eviction and granting a money judgment for unpaid use and occupancy is granted to the extent of setting the matter down for a virtual hearing on November 22, 2021, at 12:00 noon pursuant to Laws of 2021, chapter 417, § 2, part C, § 1, subpart A, § 10 (a) to determine the validity of respondent's hardship declaration.

Procedural History and Background

This is a "no cause" holdover eviction proceeding commenced by notice of petition and petition dated January 2, 2020, based upon a predicate 30-day tenancy termination notice. The petition states that the premises are not subject to rent regulation due to being located in a two-family house. At the first scheduled court date in Resolution Part D on January 21, 2020, petitioner by counsel and respondent pro se settled the case in an agreement which granted petitioner a final judgment of possession, warrant to issue forthwith, execution stayed through February 28, 2020. Conditioned on compliance with the agreement, petitioner's claims for rent and use and occupancy, and respondent's defenses to such claims, were severed for a plenary action. The case was discontinued as against "John Doe" and "Jane Doe" based upon respondent's representation that he resided alone.

Prior to a city marshal requisitioning issuance of a warrant of eviction, the COVID-19 pandemic struck, Governor Cuomo issued his "New York State on Pause" executive order on March 20, 2020, and all nonessential court proceedings and processes were postponed.{**73 Misc 3d at 723}

On October 21, 2020, the court approved petitioner's request to convert this case to e-filing, after which petitioner filed a motion via NYSCEF (New York State Courts Electronic Filing System) to restore the proceeding to the calendar on a future "date to be determined by the court" for issuance of a warrant of eviction pursuant to Directive and Procedure 213 of New York City Civil Court's Administrative Judge (eff Aug. 12, 2020) (DRP-213). Before the motion was calendared, the New York State Legislature enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) (L 2020, ch 381), effective December 28, 2020.^[FN*] A key feature of CEEFPA was its authorization of stays of eviction proceedings and evictions—originally through May 1, 2021, and then extended by the legislature in early May through August 31, 2021—for tenants experiencing a financial hardship and/or for whom vacating the premises and moving into new permanent housing would pose a significant health risk due to the COVID-19 pandemic. The mechanism for triggering these stays under CEEFPA was the tenant's completion and submission to their landlord or the court of a specified "Hardship Declaration" form, defined in [*2]CEEFPA § 3, part A, § 1 (4). The tenant's selection of the "financial hardship" option on the form created a rebuttable presumption that the tenant was experiencing financial hardship. (CEEFPA § 3, part A, § 11.)

The court calendared petitioner's motion initially for June 3, 2021, in the Housing Motion Part. On that date the case was transferred to Part D and adjourned first to June 22 and then June 30, 2021. Prior to the June 30, 2021 adjourned date, on June 24, 2021, respondent filed a hardship declaration with the court by his newly-retained counsel. Respondent checked off the box on the form indicating that he was "experiencing financial hardship" and unable to pay his rent or use and occupancy because of "one or more" of a list of five COVID-19 pandemic-related factors. Accordingly, the court stayed petitioner's still pending DRP-213 motion pursuant to CEEFPA and re-calendared it for a virtual conference on September 10, 2021.{**73 Misc 3d at 724}

On August 12, 2021, CEEFPA § 3, part A was enjoined by the United States Supreme Court in Chrysafis v Marks (594 US &mdash, 141 S Ct 2482 [Aug. 12, 2021]). However, effective September 2, 2021, the New York State Legislature enacted chapter 417 of the Laws of 2021 which, inter alia, reinstated many of the hardship declaration provisions and extended the prohibition on evictions through January 15, 2022, for residential tenants who suffered financial hardship during the COVID-19 "covered period." (L 2021, ch 417, § 2, part C, § 1, subpart A, § 6.) The new law also added a mechanism for petitioners to challenge the validity of hardship declarations: "A motion may be made by the petitioner, attesting a good faith belief that the respondent has not experienced a hardship, with notice to the respondent, and the court shall grant a hearing to determine whether to find the respondent's hardship claim invalid." (L 2021, ch 417, § 2, part C, § 1, subpart A, § 10 [a].)

At the September 10, 2021 virtual conference, in response to respondent's request for the case to be stayed through January 15, 2022, under Laws of 2021, chapter 417, petitioner's counsel stated that his client wished to challenge the validity of respondent's hardship declaration. Accordingly, the case was adjourned to October 14 with a briefing schedule on a motion to be filed by petitioner under section 10 of the new law. On October 14 the court heard argument and then put the case over to the next day for a possible settlement negotiation session with both parties and their attorneys present. The settlement conference did not take place and, after additional argument on October 15, the motion was marked submitted, decision reserved.

Petitioner's Motion

In his affidavit in support of the motion petitioner explains that he is the owner of the subject two-family house where he also lives. Petitioner's bedroom is on the second floor and he rented respondent a bedroom in his apartment on the third floor. Petitioner describes himself as "bedbound" and explains that he has motion-sensitive cameras throughout the building which allow him to monitor activity via an application on his phone. Petitioner asserts "in good faith that respondent, Steven Washington, has not experienced any hardship, including but not limited to any financial hardship, related [to] the COVID-19 pandemic." To support this assertion petitioner states that, via the cameras, he regularly sees respondent leave for work at 3:30 p.m. Mondays through Fridays, that this{**73 Misc 3d at 725} schedule has been consistent throughout respondent's occupancy, "including but not limited to the Pandemic months, March 2020 through the present," and that he does not observe respondent wearing a mask or "any signs, nor other indicia, from respondent of any financial or health distress."

In opposition, respondent argues that petitioner has failed to allege a "good faith belief [*3]that the respondent has not experienced a hardship" sufficient to require a hearing on the validity of respondent's hardship declaration. Respondent's attorney argues that any determination of good faith must be based on "the totality of the circumstances," citing to Wells Fargo Bank, N.A. v Van Dyke (101 AD3d 638, 639 [1st Dept 2012]). Respondent further cites to two more recent cases in support of his argument: Casey v Whitehouse Estates, Inc. (73 Misc 3d 562 [Sup Ct, NY County, Sept. 15, 2021]), and Southern Acquisition Co. LLC v TNT, LLC (71 Misc 3d 1002 [Sup Ct, Ulster County, Apr. 26, 2021]).

On reply, petitioner first argues that respondent could have but did not "put the matter to rest" by simply showing his pandemic-related financial hardship, through "income or other evidence" by affidavit. Further, petitioner argues that there is nothing in the statute that requires him to "prove a negative" at this juncture. Finally, petitioner argues that the Casey and Southern Acquisition cases are distinguishable and do not warrant denial of the motion.

Discussion

The question presented by petitioner's pending motion is whether his papers are sufficient to warrant setting the matter down for a hearing "to determine whether to find the respondent's hardship claim invalid." (L 2021, ch 417, § 2, part C, § 1, subpart A, § 10 [a].)

Petitioner has submitted his own sworn affidavit to present his "good faith belief that the respondent has not experienced a hardship." (L 2021, ch 417, § 2, part C, § 1, subpart A, § 10 [a].) In that affidavit petitioner asserts that he is the owner of the subject two-family house, that he lives in one of the two apartments there and that he rents a room in his apartment to respondent. Because he is "bedbound," to monitor the activity in his house, including respondent's comings and goings, petitioner relies on motion-sensitive cameras that he monitors on his phone. It is based on these observations that petitioner concludes that respondent has maintained the same work schedule as he had prior to the pandemic and that respondent{**73 Misc 3d at 726} does not appear to have suffered a pandemic-related financial hardship.

On the totality of these circumstances (Wells Fargo Bank, N.A. v Van Dyke), the court answers the question presented in the affirmative and finds that petitioner has made a sufficient showing to require the court to hold a hearing to determine the validity of respondent's hardship declaration under Laws of 2021, chapter 417, § 2, part C, § 1, subpart A, § 10 (a).

Neither Casey v Whitehouse Estates, Inc. nor Southern Acquisition Co. LLC v TNT, LLC support respondent's argument that petitioner has failed to make a sufficient showing on his motion. Casey is a class action filed in 2011 by tenants claiming that their tenancies were subject to rent control or rent stabilization, that their apartments had been illegally deregulated and that they had been overcharged for rent. Pending before the court last month were the defendant landlords' motions for, inter alia, judgments of possession and writs of assistance due to certain plaintiff tenants' failure to pay use and occupancy. Plaintiff tenants, who had filed hardship declarations, argued that the proceeding should be stayed through January 15, 2022, under Laws of 2021, chapter 417, § 2, part C, § 1, subpart A, § 4. The court granted the stay, finding first that the defendant landlords had not complied with the requirement under Laws of 2021, chapter 417, § 2, part C, § 1, subpart A, § 10 (a) that a challenge to the validity of a hardship declaration must be made by motion. Second, the court found that the defendant landlords' "supplemental submission" in support of their request was deficient as it merely asserted "as a legal matter" (Casey, 73 Misc 3d at 571) that the plaintiff tenants did not come within the relevant statutory definition of financial hardship. The defendant landlords' "supplemental submission," [*4]available for viewing on NYSCEF as Document No. 497 under New York County Supreme Court index No. 111723/2011, consists of a two-page letter from their attorneys which contains no factual refutation of the plaintiff tenants' claims of pandemic-related financial hardship. Here, in contrast, petitioner has filed the requisite motion and supported it with his affidavit asserting the factual basis for his challenge to respondent's claim of pandemic-related financial hardship.

The decision in Southern Acquisition, a commercial foreclosure proceeding, was issued on April 26, 2021, under the COVID-19 Emergency Protect Our Small Businesses Act of{**73 Misc 3d at 727} 2021 (L 2021, ch 73). The plaintiff had moved to invalidate defendants' hardship declarations as lacking in merit. The court found plaintiff's motion papers to be insufficient, noting that they merely stated, "in self-serving and conclusory terms," that the hardship declaration lacked merit and was "being used for the sole purpose of delaying the foreclosure sale from being scheduled" (Southern Acquisition Co. LLC v TNT, LLC, 71 Misc 3d at 1005). The court further noted that plaintiff's motion papers were not supported by any exhibits—not the hardship declarations nor even "the most basic of documents, the complaint with the mortgage" (id. at 1006). Here, in contrast, petitioner's motion is supported by his sworn affidavit with personal observations, a copy of the notice of petition and petition and a copy of respondent's hardship declaration.

Conclusion

For the reasons stated above, and on the facts and circumstances of this case, the court finds that a sufficient showing has been made to grant petitioner's motion to the extent of setting it down for a virtual hearing to determine the validity of respondent's hardship claim.