Civil Court of the City of New York, Kings County, April 25, 2023

Novick Edelstein Pomerantz, PC, Yonkers (Ryan Matthews of counsel), for petitioner.

The Legal Aid Society, Brooklyn (Ferdinand Ubozoh of counsel), for respondent.

Petitioner filed this instant nonpayment proceeding on or about March 14, 2022, seeking a final money judgment in the amount of $5,220.00 and a judgment of possession of the premises located at 1539 Sterling Place, Brooklyn, New York 11213, from respondent, Gregory Antoine. Petitioner predicated its nonpayment proceeding upon service of a 14-day rent demand. On August 22, 2022, the parties entered into a stipulation of settlement whereby respondent acknowledged owing $4,123.00 in arrears through August 2022, and agreed to pay [*2]the same, plus September's rent by September 15, 2022. On or about December 16, 2022, the court was notified that an ERAP (COVID-19 Emergency Rental Assistance Program of 2021) application was filed, and therefore the matter was placed on a mandatory administrative stay. On or about February 10, 2023, petitioner filed the instant order to show cause seeking to vacate the ERAP stay on the basis that the respondent's tenancy is subject to Section 8 and therefore "will not be assessed for eligibility until all other applications have been considered."^[FN1]

ERAP under section 8 (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as modified by L 2021, ch 417) remains fully in effect (the act or ERAP statute).^[FN2] Pertinent parts of the act state:

"Restrictions on eviction. Except as provided in section nine-a of this act, eviction proceedings for a holdover or expired lease, or non-payment of rent or utilities that would be eligible 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. Except as provided in section nine-a of this act, in 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{**79 Misc 3d at 929} 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. Evidence of a payment received pursuant to this act or a local program administering federal emergency rental assistance program funds may be presented in such proceeding and create a presumption that the tenant's or occupant's rent or utility obligation for the time period covered by the payment has been fully satisfied" (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as amended by L 2021, ch 417, § 2, part A, § 4 [emphasis added]).

There is no dispute that respondent has a pending ERAP application, or that the application is pending determination. Specifically, there has not been a denial or a provisional approval; thus no determination has been made. Since approximately June 2022, the agency that processes ERAP applications and issues ERAP eligibility decisions, the Office of Temporary and Disability Assistance (OTDA), has stated on its ERAP home page:

"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. State law requires that these applications be paid after all other eligible applicants have been reviewed and paid. Therefore, at this time, none of the subsidized housing applications can be paid regardless of the date their application was submitted."^[FN3]

In nonpayment proceedings against Section 8 tenants, some courts have declined to vacate the ERAP stay (see e.g. Robo LLC v Matos, 75 Misc 3d 1211[A], 2022 NY Slip Op 50468[U] [Civ Ct, Bronx County 2022]; 14 N Highstreet, LLC v Clowney, 76 Misc 3d 768 [Mount Vernon City Ct, Aug. 3, 2022]); and others have granted motions to vacate (see e.g. EG Mt. Vernon Preserv. LP v Duncan, 77 Misc 3d 1226[A], 2023 NY Slip Op 50044[U] [Mount Vernon City Ct, Jan. 17, 2023]; Leshchinsky v Lutula, 77 Misc 3d 1206[A], 2022 NY Slip Op 51156[U] [Civ Ct, Kings County, Nov. 21, 2022]). The [*3]primary purpose of the ERAP statute is to prevent evictions by paying a landlord{**79 Misc 3d at 930} rental arrears owed by an eligible tenant. Eligibility is determined solely by OTDA.^[FN4] Here, the petitioner has brought a nonpayment matter, and alleged $5,220.00 in arrears in its petition. In the instant order to show cause, the petitioner alleges that $5,826.00 is owed through January 2023. An ERAP payment could potentially make the petitioner whole and satisfy this nonpayment matter, which would result in ERAP working as designed. Though the website states that "at this time, none of the subsidized housing applications can be paid" (emphasis added), there is a possibility that additional funding may be provided, and subsidized housing applications will be processed, if not prioritized. Though Section 8 tenants may be low priority, low priority does not mean that a denial will be issued.

Petitioner essentially asks this court to find that any pending ERAP stay where a tenant receives Section 8 benefits should be vacated, even where, as here, it's a nonpayment proceeding and the amount in question is relatively low. This court finds it inappropriate to vacate the ERAP stay as a matter of course simply because the respondent is a Section 8 tenant, and specifically here, where there is a pending ERAP application in this nonpayment matter as the petitioner may in fact be made whole upon an approval, since the respondent is "eligible" under the ERAP statute. (See 1661 Topping Realty LLC v Luwana Goodwin, 2023 NY Slip Op 30881[U], *3 [Civ Ct, Bronx County, Mar. 18, 2022] [declining to vacate an ERAP stay where tenant was a Section 8 tenant and finding that OTDA's continued inclusion of subsidized tenants as "eligible" candidates supported the continued stay].)

For the reasons stated supra, petitioner's order to show cause to vacate the stay triggered upon respondent, Gregory Antoine, filing an ERAP application is denied. Therefore, this matter remains on the ERAP calendar until there is a determination.