Plaintiff SBH Ventures LLC filed the instant action on September 3, 2021, seeking $4,328.35 in past-due rent from the Defendants Bertha Marie Hines and Jarell White. The matter proceeded to trial on January 27, 2022.

The Plaintiff appeared and testified that he filed the petition for unpaid rent. The Plaintiff testified that the original parties to the lease were Defendant Bertha Hines and Deloris Collette, the latter of whom was released from her obligations under the lease. Plaintiff testified that subsequent to filing the instant action the Emergency Rental Assistance Program (ERAP) brought the Defendant's rent current through the month of August 2021. The Plaintiff testified that the Defendant eventually moved out, but not until sometime in November, 2021.

The Plaintiff testified that the rent was increased by $100 in January, 2021 when he learned that Defendant White was living at the residence per the lease agreement. He thinks the increase is appropriate because a rental application is different than a lease. He testified that had Defendant White been present when the parties signed the lease, he would have entered into the lease with Mr. White at the time. Instead, he became aware of Mr. White living at the property around January and increased the rent by $100 because he is not a person named in the lease.

The Plaintiff admitted the following exhibits:

• Plaintiff's Exhibit #1: Spreadsheet detailing the amount of rent still owed as [*2]$1,917.87 which is the amount following the ERAP payment and is for the months of September, October, and November 2021. It is noted that the Court adds the monthly amounts of $692.25 for September, $692.25 for October, and $576.87 for November and obtains the result of $1,961.37.

• Plaintiff's Exhibit #2: Letter to the Mayor dated 8/4/21.

• Plaintiff's Exhibit #3: Residential Lease Agreement with Lease Amendment. The Amendment includes (1) a provision to increase rent by 3% each year and (2) a provision to increase rent by $100 per each additional person not named in the lease.

The Defendant Bertha Hines appeared and testified that Defendant Jarell White's name appeared on the rental application, but didn't move into the apartment until around January, 2021. Defendant testified that the air quality at the apartment was poor which aggravated her respiratory health condition. Defendant Hines testified that the carpet, walls, air ducts, and several other items in the apartment were in poor condition. Defendant Hines testified that she purchased an air conditioner, air purifier, furnace filter, and various other items for the apartment and seeks to offset the rent for these purchases. Defendant Hines gave conflicting testimony about when she gave up possession of the apartment. She gave three dates: October 1, 2021; October 4, 2021; and, November 27, 2021. It seems she may have "packed up" her things on October 1, 2021, then "moved out" on October 4, 2021, but then didn't change the locks until November 27, 2021. She admitted to leaving things in the apartment after moving out so she could do the "walkthrough" with the landlord-plaintiff at a later date. The Defendant admitted the following exhibits:

• Defendant's Exhibit A: Renter's Application

• Defendant's Exhibit B: forwarded email from ERAP dated August 20, 2021

• Defendant's Exhibit C: printouts from text messages between Plaintiff and Defendant

• Defendant's Exhibit D: receipts for various materials purchases for the apartment

• Defendant's Exhibit E: letter from Plaintiff dated 3/15/21 with a reply on May 1, 2021 and 6/14/21

• Defendant's Exhibit F: pictures of the apartment

• Defendant's Exhibit G: copy of the Residential Lease Agreement

The Court has considered all of the evidence and finds that the claim as it relates to Mr. Jarell White is improper because this claim is based on a breach of contract (the residential lease) to which Mr. White has not affixed his signature. All parties admit that Deloris College was released from the lease. The proper parties before this Court are Plaintiff and Defendant Bertha Hines. Accordingly, the matter only as it relates to Mr. White must be dismissed.

The Court further finds that the rental lease application is just that — an application. The lease by its terms is between Plaintiff and Defendant Hines as well as another individual who everyone agrees was released from her obligations under the lease. The Court finds that had Mr. White been present on May 7, 2020, that the lease would have included Mr. White. However, that is not the case. Rather the parties at that time chose to enter into an agreement with two tenants: Defendant Hines and the released party. Knowing this state of affairs, the parties still chose to include the provision for a $100 rent increase if individuals not named in the lease end up moving into the apartment. The parties could have chosen to redraft the provision to include parties named in the rental application, but they chose not to do so. This court will not strike a [*3]better deal for the parties than the one they chose to make at the time of the contract.

The Court further finds that the 3% rent increase is proper as it is explicitly mentioned in the lease addendum. Although the ERAP terms prohibit rent increases for 1 year, this rent increase occurred in May, 2021, before the ERAP payment was approved in August, 2021, which means the terms of the lease and not the ERAP payment(s) are controlling. Again, the Court will not strike a better deal for the parties than the one they chose to make at the time of the contract.

The Court finds that the instant lawsuit as it pertains to Defendant Hines is proper. Although Defendant believes it is barred by the ERAP terms, the Court finds that ERAP does not prevent lawsuits to recover unpaid rent after the ERAP dates. The ERAP website has a frequently asked question on this issue and provides:

6. If my tenant owes me rent from before March 13, 2020, or does not pay rent after the time covered by the ERAP payment passes, would I be prohibited from evicting my tenant for nonpayment of rent in the year following my receipt of the ERAP payment? **

No. As a condition of receiving an ERAP payment, a landlord must agree that the ERAP payment satisfies the tenant's full rental obligation for the period covered by the ERAP payment. If a tenant owes rental arrears that predated the COVID-19 pandemic, or does not pay rent in the future, a landlord would not be prohibited from beginning an eviction once any applicable eviction moratorium has expired. (https://otda.ny. gov/programs/emergency-rental-assistance/faq.asp [January 31, 2022]).

The Court finds that it will not offset the Defendant's rent obligations by amount spent on chattel (tangible personal property such as the air conditioner or air purifier) or repair parts for fixtures (property attached to the apartment such as minor sink parts or the furnace filter). The former are chattel owned and retained exclusively by the Defendant. The later are related to fixtures, but the lease on page 2, paragraph 14 states "Tenants agree to (i) properly use, operate and safeguard the premises and all furniture and furnishings, appliances and fixtures within the premises... ". Again, the Court will enforce the agreement the parties made and not strike a better bargain for the parties than the one they agreed to when the signed the contract.

Lastly, the Court finds that the rent is due on the "[f]irst day of each month." Although there are penalties for late payments after a particular period of time, it appears that the monthly rent is due and owing on the first day of the month. Although the parties agreed that the Defendants had possession of the property until sometime in November and no rent was paid, this Court can not issue a judgment for rent that accrued after the filing date on September 3, 2021, because the Defendant was only on notice of the rent that accrued until September 3, 2021. Pursuing a claim for damages after the filing date would deprive the Defendants of their due process rights of notice that such prospective rent would be sought when the petition says "Unpaid Rent" and not "Future Unpaid Rent". Since all parties agree that the rent until and including August 2021 was paid through the ERAP program, the only pre-filing, past-due rent that the Court can award to the Plaintiff is the rent for September 2021 at the pre-ERAP 3% increase together with the additional $100 for the undisputed non-signatory resident Mr. White for the amount of $695.25. If the Plaintiff wishes to pursue a claim for past due rent for the months of October and November, 2021, then the Plaintiff will have to file a new claim.

Therefore, it is hereby ORDERED:

1. The petition as it relates to Defendant Jarell White must be dismissed;

2. The judgement is for the Plaintiff against Defendant Bertha Hines in the amount of $695.25.

3. No costs will be awarded because the Defendant was successful in reducing the amount and term of the calculated damages.

This is the Decision and Order of the Court.