Justice Court of the Town of Greenburgh, Westchester County, March 20, 2023

Lehrman, Lehrman & Guterman, LLP, White Plains (Mark A. Guterman of counsel), for petitioner.

Legal Services of the Hudson Valley, White Plains (Barbara N. Reilly of counsel), for Tawanna Porter, respondent.

Resena Porter, respondent pro se.

Petitioner moves to lift the stay currently imposed on the instant nonpayment summary proceeding pursuant to the New York COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) (L 2021, ch 56, § 1, part BB, § 1, subpart A, § 1, as amended by L 2021, ch 417, § 2, part A) with respect to arrears that cannot be covered by the program. Respondent, Tawanna Porter (hereinafter T. Porter), by counsel, opposes, claiming that the stay must remain in its entirety pending a determination of the household's eligibility for rental assistance by the requisite authorities. Pro se respondent, Resena Porter (hereinafter R. Porter), has not opposed. Pursuant to CPLR 2219, this court reviewed the petition and exhibits; the amended petition; petitioner's notice of motion, affirmation, and exhibits; respondent T. Porter's affirmation in opposition; petitioner's reply affirmation; and petitioner's supplemental reply affirmation. For the reasons set forth below, petitioner's motion is granted.

Petitioner commenced this nonpayment summary proceeding to recover possession of an apartment unit and for a monetary judgment for rent arrears from two Section 8 co-tenants (sisters), commenced against T. Porter by notice of petition, dated January 28, 2021, and against R. Porter by amended notice of petition, dated October 6, 2022.

On September 10, 2021, respondent, T. Porter, by counsel, informed the court that she filed an application for rental assistance for the household (both T. Porter and R. Porter) through ERAP, at which time this proceeding was stayed pending{**79 Misc 3d at 697} a determination of the household's eligibility for relief, pursuant to ERAP § 8. Pro se respondent, R. Porter, was subsequently added as an additional respondent since she is co-tenant of the subject premises.

As of January 17, 2023, respondents owe a total of $18,573 in arrears. These arrears stem from 35 months of unpaid rent, from March 1, 2020, to January 1, 2023.^[FN1] In general, ERAP provides eligible renters with payment for up to 15 months of rent arrears (ERAP § 9 [providing payments for 12 months of arrears and potentially three months of prospective rent]).^[FN2] Assuming, as petitioner does, that respondents will be eligible for the maximum amount contemplated by the program, only 15 months of arrears will be paid, at a total of $9,893, leaving petitioner with a minimum deficit of $8,680, for 20 months' arrears, if/when ERAP determines whether respondents are eligible and makes payment on their behalf. Notably, the law sunsets in 2025, and as such, petitioner may have to wait years to find out whether respondents, as Section 8 tenants, will be approved in whole, in part, or not at all.^[FN3]{**79 Misc 3d at 698}

With no appellate guidance to date, what sets this case apart from most if not all other cases where courts of concurrent jurisdiction have lifted the ERAP stay is that: (1) no determination has yet been made by ERAP; (2) petitioner is not waiving its right to receive the funds if granted; and (3) petitioner assumes for purposes of lifting the ERAP stay that it will be paid the maximum amount allowed for a full 15 months.

With that as a backdrop, petitioner now moves this court to lift the stay with respect to the 20 months' arrears that will not be covered by ERAP. For the sake of argument, since petitioner assumes that it will receive the maximum payment permitted, it excludes the 15 months of the highest possible rent (rent due has fluctuated) from its request but argues that the stay must be lifted on arrears for which ERAP will never pay regardless of the ERAP determination.

Petitioner argues that the court must lift the stay, because to do otherwise would call into question ERAP's constitutionality, claiming that the statute would violate petitioner's rights under the Due Process Clause of the United States Constitution (Chrysafis v Marks, 594 US —, 141 S Ct 2482 [2021]). Yet, as noted in Fantis Foods v Standard Importing Co. (49 NY2d 317, 327 [1980]), "[A] statute is to be construed so as to avoid grave doubts concerning its constitutionality" (see also McKinney's Cons Laws of NY, Book 1, Statutes § 150 [hereinafter NY Stat]). Respondent T. Porter contends that the plain language of the ERAP statute requires a stay of the entire proceeding, regardless of whether ERAP will pay all, none, or any part of respondents' covered arrears.

It is well settled that "courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional" (Overstock.com, Inc. v New York State Dept. of Taxation and Fin., 20 NY3d 586, 593 [2013], quoting LaValle v Hayden, 98 NY2d 155, 161 [2002]; see also People v Viviani, 36 NY3d 564 [2021]). Therefore, before addressing petitioner's constitutional argument, the court must first determine, using the time-honored principles of judicial construction, whether the ERAP statute itself mandates a stay with respect to arrears above and beyond the 15 months the program's assistance was intended to satisfy (compare Barton v Bixler, 74 Misc 3d 1226[A], 2022 NY Slip Op 50228[U] [Suffolk Dist Ct, 3d Dist 2022]).{**79 Misc 3d at 699}

"The primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the Legislature" (People v Galindo, 38 NY3d 199, 203 [2022] [internal quotation marks and citations omitted], quoting Riley v County of Broome, 95 NY2d 455, 463 [2000]; NY Stat § 92). Statutes, regulations and the like must be analyzed in such a way, if possible, that assumes their constitutionality and "the saving construction must be one which the court 'may reasonably find implicit' in the words used by the Legislature" (People v Dietze, 75 NY2d 47, 52-53 [1989] [citations omitted]). Furthermore, "[a] statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent" (NY Stat § 97). The court must also avoid an interpretation that would render a portion of the statute superfluous (Galindo, 38 NY3d at 205). Finally, when the plain language of a statute is ambiguous, extrinsic evidence of legislative intent may be considered in its interpretation (NY Stat § 120).

Section 8 of ERAP states, in pertinent part:

1. "[E]viction proceedings for . . . non-payment of rent or utilities that would be eligible [*2]for coverage under this program shall not be commenced against a household who has applied for this program or any local program administering federal emergency rental assistance program funds unless or until a determination of ineligibility is made."

2. "[I]n any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility." (Emphasis added.)

The first provision noted above prevents certain summary proceedings from being commenced, and the second provision provides for a stay for actions already commenced. A plain reading of the first provision prohibits the commencement of nonpayment proceedings for rent "that would be eligible for coverage" under ERAP, if the renter has applied for ERAP relief. Section 9 of ERAP explains that a maximum of 15 months of arrears are eligible for coverage. Therefore, when read together, the statute prohibits the commencement of{**79 Misc 3d at 700} nonpayment proceedings against a renter who has applied for ERAP and has 15 months or less of arrears.

The second provision, as referred to above, is more ambiguous. Respondent T. Porter argues that this provision mandates a stay of any pending nonpayment proceeding against a renter who has applied for benefits that "cover all or part of the arrears" (emphasis added) until a determination of eligibility has been made (ERAP § 8). Interpreting this sentence to mandate a stay of every nonpayment proceeding regarding any or all arrears (not just "the" covered arrears), regardless of when they accrued or whether covered by ERAP, ignores the phrase regarding the tenants' application for benefits "under this program" and would lead to an absurd result: an action could be commenced against a renter who has applied for ERAP while having more than 15 months of arrears, but that action would be immediately stayed for an indefinite period of time. Respondent T. Porter's interpretation of the second provision would thus make the first provision frivolous and superfluous, in violation of the tenets of statutory construction detailed above, because it would make it futile to bring an action that would be immediately stayed.

A fairer reading of the second provision is that it stays all pending proceedings that concern arrears due during the covered period (or benefits that might be paid under other applicable programs), after a tenant applies for rental assistance. The phrase "any local program administering federal emergency rental assistance program funds to cover all or part of the arrears" is a descriptor; it explains that the stay may apply to programs beyond ERAP, but it does not expand the scope of ERAP coverage.^[FN4] Thus, this court does not read the statute as mandating a stay for every proceeding in which there is an ERAP application filed, without consideration of when rent arrears first accrued or when nonpayment rent obligations (outside the coverage period) continue to accrue with no end in sight. Rather, this court interprets the plain language of ERAP § 8 to stay any pending proceeding eligible for benefits under this program, or any local, state, or federal rental assistance program.

In short, if a pending summary nonpayment proceeding relates to arrears not eligible for coverage, the stay does not apply.{**79 Misc 3d at 701}

A reading of the NY State Senate Introducer's Memorandum in Support of the most recent [*3]amendment to the ERAP statute supports this court's interpretation. The memorandum states: "[A]fter applying for emergency rental assistance, a household cannot be evicted . . . for non-payment of rent or utilities eligible for coverage under the program until such time as the household is determined to be ineligible to receive emergency rental assistance" (Senate Introducer's Mem in Support, Bill Jacket, L 2021, ch 417 at 11 [emphasis added]). The drafters' intent was only to provide a stay of evictions for occupants eligible for coverage. The legislative intent being clear, and any ambiguity having been resolved, there is no need to delve into the constitutionality of an alternative interpretation (see e.g. People v Viviani, 36 NY3d 564, 588 [2021, Rivera, J., concurring] ["Indeed, if the plain statutory text itself supplied the constitutional construction, there (is) no need to invoke the canon of constitutional avoidance in the first place"]).

In addition, this case is distinguishable from those cited by respondent T. Porter. In Mason v Reyes (75 Misc 3d 1210[A], 2022 NY Slip Op 50458[U] [Civ Ct, Kings County 2022]), the primary issues were whether the ERAP application was made in bad faith and whether there were sufficient ERAP funds for payment. In the pending case, petitioner does not contest the validity of the ERAP application and even assumes it will receive payment—instead, petitioner avers that it cannot be made whole by ERAP payments, even if provided in full. In Yonkers 2012 Assoc. LLC v AnnMarie Heslop (Yonkers City Ct, 2022, Medina, J., index No. LT-0445-20), the court, a court of concurrent jurisdiction, erroneously relies on a nonbinding administrative order in making its decision; as such, this case is not persuasive. And finally, in EG Mt. Vernon Preserv. LP v Roberts (77 Misc 3d 1224[A], 2023 NY Slip Op 50025[U] [Mount Vernon City Ct 2023]), the petition states that an ERAP stay should be lifted because an ERAP application for a Section 8 tenant is futile, as the government is unlikely to pay the rent relief—an issue that has no bearing whatsoever on the instant proceeding because petitioner, herein, assumes for the sake of argument that it will receive full payment for the covered period. Ultimately, respondent ignores the final decision by the Mount Vernon City Court (id.) as described below.

In this case, the respondents have at least 20 months of rental arrears that are ineligible for coverage under ERAP. Furthermore, even after being advised in the notice to tenant,{**79 Misc 3d at 702} served on respondents, that they still owe any unpaid rent to their landlord, and the New York Office of Temporary and Disability Assistance explains in the frequently asked questions section on their website that tenants remain responsible for paying their rent (New York State Office of Temporary and Disability Assistance, Emergency Rental Assistance Program, ERAP Frequently Asked Questions, https://otda.ny.gov/programs/emergency-rental-assistance/faq.asp [last accessed Mar. 14, 2023]), this court reasons that such warnings are a clear indication that ERAP funds, along with the concomitant stay provisions, will only be paid for a maximum of 15 months.

The stay is, therefore, inapplicable to those months in excess of the 15 covered by ERAP (see EG Mt. Vernon Preserv. LP v Duncan, 77 Misc 3d 1226[A], 2023 NY Slip Op 50044[U] [Mount Vernon City Ct 2023]; also see Pelham Hgts. LLC v Hogstrom, Pelham Just Ct, Feb. 2, 2023, Kagan, J., docket No. 22080236; see generally CPM Tudor Vil., LLC v Atkinson, 77 Misc 3d 1214[A], 2022 NY Slip Op 51209[U], *3-4 [Suffolk Dist Ct, 3d Dist 2022] ["any stay arising out of the ERAP program is limited to 15 months and that the failure to pay rent after 15 months, even while awaiting an ERAP decision, is grounds to issue a warrant of eviction. See generally, Kristiansen v. Serating, 75 Misc 3d 331 (Suf. Co. Dist. Ct., 2022)"]).^[FN5] As such, the stay is lifted and petitioner may proceed in its [*4]eviction and nonpayment proceeding with respect to all arrears that will not be covered by ERAP, which excludes arrears from April 2020 to June 2021, for which months the stay will remain in effect.

Therefore, it is ordered and decided that the stay is hereby vacated as it relates to arrears both before and after the 15 months potentially covered by ERAP.

"IMPORTANT NOTE: Applications from subsidized housing tenants whose rent is limited to a certain percentage of income (including public housing, section 8, and FHEPS) are not currently able to be paid. . . . Therefore, at this time, none of the subsidized housing applications can be paid regardless of the date their application was submitted. Residents of public housing are urged to contact their public housing authority to determine if their rent can be adjusted retroactively based on a previous change in circumstances, including a reduction in income" (https://otda.ny.gov/programs/emergency-rental-assistance/#overview [last accessed Mar. 15, 2023]).