City Court of Yonkers, June 15, 2022

James G. Dibbini & Associates, Yonkers, for petitioner.

Legal Services of the Hudson Valley, Yonkers (Christopher Schweizter of counsel), for Martina Williams, respondent.

Respondent seeks an order staying the above-entitled proceedings. Respondent claimed her March 2022 filing of a COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) application prevents any further action until a determination is made.

This summary nonpayment proceeding (LT 1340-20) was commenced in September 2020 wherein the petition claimed that $7,583.40 was due for the period from April 2020 to September 2020 at a rate of $1,263.90 per month pursuant to a lease agreement between the parties. Respondent appeared and filed a written answer denying the allegations of the petition [*2]and asserted affirmative defenses including financial hardship due to the COVID-19 pandemic and a breach of the warranty of habitability and alleged petitioner refused to provide respondent a rent-stabilized renewal lease until after a rent increase was approved.

In January 2021, counsel for respondent moved to withdraw. The application was granted by the court in a decision and order dated January 13, 2021. In January 2021, petitioner filed a motion to conduct discovery. Respondent retained Legal Services of the Hudson Valley and opposed the application. On May 13, 2021, respondent filed a COVID-19 hardship declaration indicating that she was experiencing financial hardship and alleged that vacating the premises and moving into new permanent housing would pose a significant health risk. Petitioner moved for discovery, which was denied by the court, and the matter stayed until January 15, 2022, pursuant to the respondent's hardship declaration.

On or about September 2021, petitioner filed a holdover petition under docket LT 1098-21. The petition alleged that respondents violated a substantial obligation of their lease and caused{**76 Misc 3d at 359} a nuisance by failing to provide access to petitioner to make repairs to the apartment. The two cases tracked one another and appeared on the court's calendar for conference in March 2022. The nonpayment petition (LT 1340-20) was amended to reflect an outstanding balance of $30,333.60 and the matter scheduled for a trial on May 17, 2022.

On May 17, 2022, the parties and their attorneys appeared for trial. Following a brief conference between the parties, respondent notified the court and counsel that she had a pending ERAP application. Petitioner requested a hearing to vacate the stay. Petitioner argued that respondent acknowledged that she is not residing in the premises and accordingly ERAP does not apply.

Paula Prusak, property manager for petitioner Paul Associates LLC, was the sole witness for petitioner. She stated that respondent Martina Williams is employed by Child Protective Services and earns approximately $66,000 per year. She indicated that prior to the COVID-19 pandemic, respondent paid her rent in a timely manner.

Ms. Prusak testified that on or about May 5th or May 6th, 2022, she entered the respondent's apartment and observed what she described as an "empty" apartment. She stated there were two mattresses which were still covered in plastic. The beds had no sheets, bedding or pillows. She testified that the closets were empty, and the living room furniture consisted of only two folding chairs. She stated that the bathroom and kitchen were completely empty and stated she found a pile of "garbage" in the entryway. She further stated the apartment had no electricity. Petitioner admitted a series of 15 photographs in support of Ms. Prusak's testimony without objection. (Petitioner's exhibit 1.)

On cross-examination, counsel for respondent inquired about how she gained access to the apartment. Ms. Prusak testified that she emailed Ms. Williams and that Ms. Williams granted her access on one of the three dates she requested.

Petitioner then called respondent Martina Williams. She testified she has been employed as a court liaison in the City of New York from 2014 to the present. She stated she was employed during the pandemic, from 2020-2022. She stated after taxes, she earns approximately $3,000 per month.

Regarding her living situation, Ms. Williams testified her permanent address is the [*3]subject premises, 30 Post Street, 3M,{**76 Misc 3d at 360} Yonkers, New York. She claimed to receive her mail at this address, and she visits approximately two to three times per week. However, she indicated she does not currently reside in the apartment, indicating she was forced out. Rather, she stated since in or about March 2022, she has been sleeping in different locations, depending on availability. She acknowledged she may contribute to household expenses but denied having any lease agreements or owning any property. Ms. Williams declined to provide the addresses for these locations, noting it depended on several factors and indicated that on at least one occasion she stayed in a hotel.

Ms. Williams testified her mother, Mayra Sergrams, is a cotenant and member of her household. While she was unaware of her mother's income, she alleged the previous "gig work" her mother engaged in pre-pandemic ceased in March 2020.

On cross-examination, counsel for respondent requested the court take judicial notice of a Division of Housing and Community Renewal (DHCR) order issued June 29, 2021. The order indicates that respondent filed a decrease in service complaint on December 31, 2020. Following an inspection, DHCR issued a violation order, with 12 violations including inadequate temperatures in the refrigerator and a missing door handle, the oven was not self-lighting, the kitchen sink cabinet was crumbling, and the shelf supports defective. The inspector also indicated the kitchen floor was cracked, discolored and uneven. The bathroom ceiling was noted as cracked and sagging and stained from mold.

On cross-examination the respondent alleged that she incurred increased expenses in the form of COVID-19 related personal protective equipment (PPE). She further stated her mother ceased working, resulting in Ms. Williams' responsibility to cover her expenses. Further, due to certain underlying medical conditions, Ms. Williams stated she was advised by a health care professional to avoid mass transit. She stated public transportation such as the bus and the train which she relied on pre-COVID-19 for work, grocery shopping or medical appointments was no longer an option. This, according to Ms. Williams, increased her expenses significantly. She indicated she applied for ERAP and believed she was eligible for benefits.

Regarding the conditions of the apartment, she stated she has a medical condition which is exacerbated by mold in the apartment, which has been an issue for years but has become{**76 Misc 3d at 361} progressively worse. She acknowledged she is not living in the apartment due to these conditions.

The respondent could not recall how often she used car services to travel to work since the onset of the pandemic although she estimated between March and December 2020, she used a car service approximately four times. During this time, she worked primarily from home. The respondent was unable to recall the number of times she traveled to her workplace in 2021 and she had used a car service to travel to work once in 2022. She noted she does not own a vehicle.

Counsel inquired as to her ERAP applications, and she testified she was screened for ERAP but never received any further information, so she reapplied for ERAP at the end of March 2022.

Petitioner called Paula Prusak to inquire about petitioner's efforts to make repairs. She testified respondent denied petitioner access to the premises between 25 and 35 times including on dates ordered by the court. She further testified on some occasions she went to the subject premises three times, although no one was present inside the unit to provide petitioner with access.

In closing petitioner noted respondent's continual employment which was primarily [*4]remote for the duration of the pandemic. Petitioner argued that respondent's alleged PPE expenses were encountered by everyone and did not establish a loss of household income. Petitioner further argued that respondent was not at risk of homelessness as respondent was living in various locations and not the subject premises. Petitioner asserted if respondent was truly facing homelessness, she would permit and arrange for petitioner access to enter the premises and make the necessary repairs.

Respondent contended in closing that this case fits ERAP. Counsel argued that respondent testified to the loss of household income from her mother's lack of employment during the pandemic. He noted respondent suffered a medical condition which required her to purchase excessive PPE. Counsel reiterated that this condition required respondent to arrange for alternate means of transportation not only to work but also for grocery shopping and medical appointments.

Regarding the habitability, respondent contends the conditions of the unit are documented by DHCR, an independent agency. Finally, respondent claimed petitioner cannot argue respondent{**76 Misc 3d at 362} is not at risk of homelessness when it commenced not one, but two eviction proceedings against her and her mother.

The question before the court is whether the ERAP "stay" of proceeding applies in cases where a tenant or occupant is not residing in the subject apartment.

The ERAP legislation (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1 [signed Apr. 2021]) created a program for the distribution of rent relief in the form of federal funding implemented and administered by the Office of Temporary and Disability Assistance (OTDA). In September 2021, noting due process concerns, challenges to the implementation of the program and low public awareness, the legislature amended ERAP. (L 2021, ch 417, § 2, part A.) The amendment included an automatic stay for any tenant who filed an ERAP application. This stay remains in place until a final determination of eligibility. The court notes that the Administrative Order of the Honorable Lawrence Marks (Admin Order of Chief Admin Judge of Cts AO/34/22 [dated Jan. 16, 2022]) also provides where there is a pending ERAP application, eviction matters shall be stayed until a final determination of eligibility for rental assistance is issued by the Office of Temporary and Disability Assistance, including appeals.

However, the original legislation as written ignores the due process issues raised by the Supreme Court in August 2021 in Chrysafis v Marks (594 US —, 141 S Ct 2482 [2021]), where the Court found a violation of the landlord's due process rights as they were precluded from requesting a hearing to challenge the tenant's self-certification of a COVID-19-related hardship under the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA). (L 2020, ch 381.) In response, the legislature modified the legislation to permit such a hearing.

While the automatic stay is directed in section 8 of the legislation, section 9-a provides a mechanism for court review in cases where it is alleged the tenant is substantially infringing on other tenants' rights or where the tenant is allegedly intentionally damaging the property. (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, as amended by L 2021, ch 417, § 2, part A, §§ 4, 6.) In that there is a mechanism for court review, this court finds it is not precluded from evaluating eligibility.

The legislation provides that "any pending eviction proceeding," including both nonpayment and holdover matters, "shall {**76 Misc 3d at 363}be stayed pending a determination of eligibility." (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as amended by L 2021, ch 417, § 2, part A, § 4.) [*5]Accordingly, once a tenant files an application, an automatic stay is imposed pending the determination of the ERAP application.

Notwithstanding the foregoing, several courts have recently found that due process mandates the court, upon petitioner's request, to conduct a hearing challenging the automatic ERAP stay following an application. (Harmony Mills W., LLC v Constantine, 75 Misc 3d 594 [Cohoes City Ct 2022]; Isidoro v Team Props. LLC, 2021 NY Slip Op 32626[U] [Sup Ct, NY County 2021]; Harbor Tech LLC v Correa, 73 Misc 3d 1211[A], 2021 NY Slip Op 50995[U] [Civ Ct, Kings County 2021]; Sea Park E. L.P. v Foster, 74 Misc 3d 213 [Civ Ct, NY County 2021]; 560-566 Hudson LLC v Hillman, 2022 NY Slip Op 30718[U] [Civ Ct, Kings County 2022]; 204 W. 55th St., LLC v Mackler, 2021 NY Slip Op 32901[U] [Civ Ct, NY County 2021]; Kristiansen v Serating, 75 Misc 3d 331 [Suffolk Dist Ct 2022]; Carousel Props. v Valle, 74 Misc 3d 1217[A], 2022 NY Slip Op 50168[U] [Suffolk Dist Ct 2022]; Shi Gan Zheng v Guiseppone, 74 Misc 3d 1231[A], 2022 NY Slip Op 50271[U] [Civ Ct, Richmond County 2022].)

This court agrees permitting a tenant to "self-certify" a hardship, without permitting a good faith challenge to the stay, constitutes a violation of due process. This is especially so given the fact that the eviction moratorium which expired in January 2022 has been effectively extended through the ERAP application process. There is no indication at present of an expiration of the ERAP stay or even whether there are any funds remaining available for distribution. Further, as the court is obligated to interpret legislation to avoid a constitutional impairment and, without objection, as petitioner's application alleged fraud on the part of respondent, the court granted petitioner's application for a hearing to determine whether the ERAP stay should remain in effect while the respondent's application is pending.

Regarding the eligibility, section 5 of ERAP sets forth the criteria for eligibility and provides:

"A household, regardless of immigration status, shall be eligible for emergency rental assistance, or both rental assistance and utility assistance. Such household shall be eligible if it:

"(i) is a tenant or occupant obligated to pay rent in{**76 Misc 3d at 364} their primary residence in the state of New York, including both tenants and occupants of dwelling units and manufactured home tenants, provided however that occupants of federal or state funded subsidized public housing authorities or other federal or state funded subsidized housing that limits the household's share of the rent to a set percentage of income shall only be eligible to the extent that funds are remaining after serving all other eligible populations;

"(ii) includes an individual who has qualified for unemployment or experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due, directly or indirectly, to the COVID-19 outbreak;

"(iii) demonstrates a risk of experiencing homelessness or housing instability; and

"(iv) has a household income at or below 80% of the area median income, adjusted for household size." (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 5 [1] [a].)

ERAP defines "rent" by reference to Real Property Actions and Proceedings Law § 702 which states:

"In a proceeding relating to a residential dwelling or housing accommodation, the term 'rent' shall mean the monthly or weekly amount charged in consideration for the use and [*6]occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement." (RPAPL 702 [1].)

The crux of petitioner's argument is respondent is ineligible for a stay as she is not presently occupying the apartment. The first eligibility criterion is the applicant must be a "tenant or occupant obligated to pay rent in their primary residence." (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 5 [1] [a] [i].) ERAP incorporates Real Property Law § 235-f's definition of "tenant" which is defined as "a person occupying or entitled to occupy a residential rental premises who is . . . a party to the lease or rental agreement for such premises" (Real Property Law § 235-f [1] [a] [emphasis added]). In fact, petitioner has commenced a nonpayment petition against respondents including{**76 Misc 3d at 365} this very allegation. Thus, while respondent acknowledged she is not currently occupying or residing in the premises, the reasons she cited sound in a breach of the warranty of habitability. Respondent referred to her answer which included these allegations as well as the DHCR violation notice. There is no dispute that respondent is obligated to pay rent to petitioner as consideration for the use and occupancy of the subject premises.

The court's primary consideration when interpreting legislation "is to ascertain and give effect to the intention of the Legislature." (Riley v County of Broome, 95 NY2d 455, 463 [2000] [internal quotation marks omitted].) There is no requirement that the tenant or occupant physically occupy the premises, only entitlement to occupy the premises, which is the case here. Accordingly, the issue as to the legitimacy of respondent's breach of the warranty of habitability defense may not be properly raised before the court at this hearing.

The second prong of the eligibility criteria provides that the individual "experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due, directly or indirectly, to the COVID-19 outbreak." Respondent testified during the pandemic, her mother, who is a member of her household and corespondent in the above-entitled action, Mayra Sergrams, was not employed. She further testified under the recommendation of medical professionals, she ceased public transportation which was her pre-pandemic usual and preferred method of transportation. This, she alleged, created a significant increase in expenses. Simple trips such as medical appointments and grocery shopping were allegedly significantly increased as a result. She also testified she has a medical condition which requires what she described as "excessive PPE." The court accordingly finds, for the purposes of the hearing, that respondent sufficiently demonstrated she and a household member were financially affected by the COVID-19 pandemic.

The third prong for eligibility is a demonstrated risk of experiencing homelessness or housing instability. Petitioner argued as respondent has a source of income, and has not occupied the apartment, she is not at risk of homelessness or housing instability. This generalization of equating income to housing is too broad especially when no testimony was elicited from respondent that she has an alternate residence or a second home. Furthermore, petitioner has commenced not one{**76 Misc 3d at 366} but two eviction proceedings against respondents, thereby placing them at risk of housing instability.

Finally, it appears based on respondent's testimony that her household is at or below 80% of the area's median income as required by the fourth eligibility requirement. For a household of two, such as the case at bar, 80% of the area's median income is $72,540. Counsel for petitioner elicited testimony from respondent and petitioner's witness establishing[*7] that respondent earns approximately $66,000 per year.

Accordingly, after hearing and considering the testimony, and for the foregoing reasons, the court finds the petitioner failed to meet its burden to vacate the ERAP stay. As respondent's ERAP application is pending, the proceeding is hereby stayed pending the outcome of eligibility.

It is accordingly ordered that petitioner's application to lift the stay is denied.