Civil Court of the City of New York, New York County, June 26, 2023

Law Office of Jonathan E. Neuman (Jonathan Ellery Neuman of counsel) for respondents.

Daniels Norelli Cecere & Tavel (George Norelli of counsel) for petitioner.

Procedural History and Background

This is a holdover proceeding based on service of a notice of nonrenewal of lease pursuant to Real Property Law § 226-c on Rahul Kejriwal (respondent) and other presumed occupants of the apartment. Respondent's lease expired May 27, 2022. Petitioner served respondent with the notice of nonrenewal on or about September 13, 2022, which terminated his tenancy as of November 20, 2022. (NY St Cts Elec Filing [NYSCEF] Doc No. 1 at 7-9, notice of nonrenewal & aff of serv.) Petitioner commenced the proceeding on December 16, 2022. (Id. at 1-2.) Prior to the commencement of the proceeding, and prior to the expiration of his lease, respondent applied for the COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) assistance and was approved in April 2022 with a stated payment date of April 20, 2022, almost five months prior to petitioner's{**80 Misc 3d at 585} service of the notice of nonrenewal, and eight months prior to commencing this proceeding. (NYSCEF Doc No. 10, respondent's exhibit 1, notice of approval for ERAP; see generally L 2021, ch 56, § 1, part BB, § 1, subpart A, as amended by L 2021, ch 417, § 2, part A.) According to petitioner's attorney's affirmation in opposition, "the ERAP benefits were received by the [p]etitioner on April 27, 2022. Ledger annexed as Exhibit B."^[FN1] (NYSCEF Doc No. 11, [*2]petitioner's atty affirmation ¶ 10.)

Arguments

Respondent has moved to dismiss the proceeding, arguing that petitioner was foreclosed from "seeking to evict" respondents by service of a notice of nonrenewal of lease during the 12-month period commencing with the acceptance of ERAP funds. (NYSCEF Doc No. 8, notice of mot [mot seq 1].) Respondent initially cites to Liadi v Kaba (78 Misc 3d 1209[A], 2023 NY Slip Op 50187[U] [Civ Ct, Queens County 2023]) in support of his argument. The Kaba court held that "[t]he act of initiating an eviction within the 12-month period, effectively undermines the plain reading of the statute and the obligation not to evict." (2023 NY Slip Op 50187[U], *2.) In Kaba, the court construed the ERAP statute as prohibiting even "[t]he pursu[it] of an eviction case during the window period, 12-months after the acceptance of ERAP funds," and dismissed the proceeding on the basis that service of a notice of termination was an "act[ ] designed to cause an eviction" in violation of the statute. (Id.) Respondent contends that the predicate notice of nonrenewal is incurably defective, and this proceeding must be dismissed, because he enjoyed a 12-month statutorily created tenancy from the date petitioner accepted the approved ERAP funds, prior to service of the predicate notice. Thus, his tenancy could not have been terminated on November 20, 2022, because his tenancy was statutorily extended through at least April 26, 2023, due to the acceptance of ERAP funds on April 27, 2022. (NYSCEF Doc No. 9, respondent's atty affirmation ¶¶ 5-7; see also NYSCEF Doc No. 11, petitioner's atty affirmation in opp ¶ 10 [acknowledging receipt of ERAP funds on Apr. 27, 2022].)^[FN2]

In opposition, petitioner argues that its acceptance of ERAP funds does not preclude petitioner from serving a notice of{**80 Misc 3d at 586} termination and/or commencing a holdover proceeding. Petitioner advances that it has only agreed "not to evict" respondent by reason of his expired lease pursuant to section 9 (2) (d) (iv) of ERAP (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iv], as amended by L 2021, ch 417, § 2, part A, § 5), and that the plain meaning of "the word 'evict' is unambiguous, and the time to 'evict' is when a marshal or sheriff removes persons from possession by a warrant." (NYSCEF Doc No. 11, petitioner's atty affirmation in opp ¶ 8.) Petitioner cites to one case, Feuerman v Hugo (77 Misc 3d 171 [Civ Ct, NY County 2022]), a decision and order written by this judge, in support of its argument.

In reply, respondent distinguishes Feuerman as "inapplicable." (NYSCEF Doc No. 12, respondent's atty affirmation in reply ¶¶ 2, 4.) Respondent reconciles the facts of this proceeding with Feuerman on the basis that, in Feuerman, at the time of both the tenant's application for ERAP and the landlord's acceptance of same, there was already a pending holdover proceeding. Thus, the landlord permissibly accepted ERAP funds without reinstating the already properly terminated tenancy, as is a landlord's right under Real Property Actions and [*3]Proceedings Law § 711.^[FN3] (Id. ¶ 5.) In contrast here, respondent applied for, and petitioner accepted, ERAP funds prior to petitioner's commencement of the current proceeding. Respondent argues that by these actions, petitioner agreed not to "seek to evict" respondent for 12 months. (Id. ¶ 16.) Respondent extracts the words "seek to evict" from the sponsor's memorandum for the legislation that created the ERAP program, and urges that the memorandum elucidates what the Legislature intended by the words "not to evict." (Senate Introducer's Mem in Support of 2021 NY Senate Bill S2742C, incorporated in L 2021, ch 56; NYSCEF Doc No. 13, respondent's exhibit 2.) Respondent further argues that service of a notice of termination is "a statutorily mandated pre-requisite to beginning an eviction proceeding," and is tantamount to "seeking to evict" respondent; thus, respondent posits that service of a predicate notice of nonrenewal of lease violated this agreement by putting respondent on notice that the landlord would commence an eviction proceeding. (NYSCEF Doc No. 12, respondent's atty{**80 Misc 3d at 587} affirmation in reply ¶¶ 5, 15.) Respondent contends that petitioner is reading the word "evict" too narrowly, and that service of a notice of termination signals to a tenant an intention to evict them. Quoting from Casey v Whitehouse Estates, Inc. (73 Misc 3d 562 [Sup Ct, NY County 2021]), respondent posits that the "definition [of the word eviction] should itself be construed broadly to further the Legislature's aim of avoiding public-health, economic, and social harms from residential evictions during the COVID-19 pandemic." (NYSCEF Doc No. 12, respondent's atty affirmation ¶ 17; Casey at 568 [stating that use of the term "eviction proceeding" should be construed broadly under chapter 417 of the Laws of 2021, without defining the word "evict"].)

Respondent's reply affirmation cites to nonbinding authority from this court—namely, 100 Realty Equities LLC v Tian (78 Misc 3d 1233[A], 2023 NY Slip Op 50411[U] [Civ Ct, NY County 2023])—in an effort to eschew the general principle of statutory interpretation that the omission of a provision or a word that the Legislature applied elsewhere in the statute gives rise to an irrefutable inference that the Legislature intended its omission. (NYSCEF Doc No. 12, respondent's atty affirmation in reply ¶ 20.) In Tian, which respondent quotes from at great length, the court conducted an in-depth examination of the ERAP statute and acknowledged that the Legislature provided for dismissal of a holdover proceeding in another provision of the statute but did not provide for dismissal of an eviction proceeding commenced within 12 months of a landlord's first acceptance of an ERAP payment. (Tian, 2023 NY Slip Op 50411[U], *2, citing Park Cent. I LLC v Price, 2022 NY Slip Op 31909[U] [Civ Ct, Bronx County 2022] [acceptance of ERAP requires dismissal in only one instance, and in all other cases, litigation may continue].)^[FN4] Notwithstanding the foregoing, the Tian court construed section 9 (2) (d) (iii) and (iv) of ERAP (L [*4]2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iii]-[iv], as amended by L 2021,{**80 Misc 3d at 588} ch 417, § 2, part A, § 5) as creating a binding " 'agreement' that . . . specifies the amount of rent and definite terms by which the agreement begins and ends, terms that are crucial toward rendering the agreement to be a valid lease." (Id. at *3 [citations omitted].) The Tian court concluded that a landlord's "acceptance of an ERAP benefit creates the kind of . . . agreement that is essentially a lease . . . [which gives] rise to liability for nonpayment of rent . . . [and which] bars . . . [a] no-cause holdover proceeding." (Id. [citations omitted].) In other words, the Tian court found that the omission of a dismissal remedy for serving a notice of termination, and the provision of that remedy elsewhere in the statute, does not foreclose a court from dismissing a holdover proceeding based on an expired lease because a lease agreement has been created by accepting ERAP funds; and, based on this interpretation of the statute, the statute must also be interpreted to require dismissal.

Oral argument was held on June 14, 2023, and the court reserved decision.

Discussion

The consequences for a landlord when it accepts ERAP monies are set forth in the ERAP statute:

"Acceptance of payment for rent or rental arrears from this program shall constitute agreement by the recipient landlord or property owner . . . (iii) to not increase the monthly rent due for the dwelling unit such that it shall not be greater than the amount that was due at the time of application . . . (iv) not to evict for reason of expired lease or holdover tenancy any household on behalf of whom rental assistance is received for 12 months after the first rental assistance payment is received . . . . " (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iii]-[iv], as amended by L 2021, ch 417, § 2, part A, § 5 [emphasis added].)

Respondent is correct that Feuerman, as well as Tian and Kaba, are distinguishable from the instant case for the reason that the ERAP application, approval, and payment in Feuerman was made after the landlord commenced the holdover proceeding. In both Tian and Kaba, as is the case here, the{**80 Misc 3d at 589} ERAP application, approval, and acceptance of payment all occurred prior to the service of the notice of termination and commencement of the proceeding. Even so, while the Kaba and Tian courts' analyses are compelling, the court respectfully disagrees with their holdings, and respondent's argument, for several reasons.

First, respondent cites to Tian to support his argument that the predicate notice is defective because "[a] new 12-month lease had already been issued and had not expired." (NYSCEF Doc No. 12, respondent's atty affirmation in reply ¶ 21.) More specifically, respondent argues that "the predicate notice . . . reference[s] the wrong lease and the wrong date, [*5]as a new 12-month lease had already been put into place." (Id.) However, basic principles of contract law militate in favor of finding the agreement that the landlord entered into upon accepting payment of ERAP monies to be with the administering agency, the Office of Temporary and Disability Assistance (OTDA), not with respondent, the approved applicant. Contrary to Tian, this court finds that the ERAP statute provides for an agreement between a recipient landlord and OTDA, to which the approved occupant is an intended third-party beneficiary.^[FN5]

A valid contract comprises "an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound." (22 NY Jur 2d, Contracts § 9.) The acts that support an agreement between OTDA and petitioner herein are as follows: OTDA informed petitioner that respondent's ERAP application had been approved and offered payment of the approved funds conditioned on petitioner's agreement to certain terms. Petitioner was given a choice whether to accept the offer of payment from OTDA subject to the terms of acceptance, or to refuse the offer of payment. Petitioner accepted the payment of arrears, in consideration for which it relinquished its right to evict or increase the rent for one year. (See Lebedev v Blavatnik, 193 AD3d 175, 183 [1st Dept 2021] [stating that valuable consideration for a contract may be some forbearance, or responsibility assumed]; see also Springstead v Nees, 125 App Div 230, 232 [2d Dept 1908] ["Forbearance to assert either a {**80 Misc 3d at 590}legal or an equitable claim is sufficient consideration" for a contract].) Respondent did not accept the approved ERAP funds; rather, petitioner accepted them on his behalf. Respondent was not given the choice to have petitioner accept or reject the monies; rather, it was only petitioner who could accept or reject the offer. Respondent did not provide consideration for the payment; rather, it was petitioner who forfeited its legal right to possession of the premises after expiration of the lease for a period of 12 months following petitioner's acceptance of the ERAP funds.

Put another way, in exchange for payment of rent arrears by OTDA, a landlord sacrificed certain rights in order to further the State's intention to prevent widespread evictions during the pandemic. The approved applicant benefits from a statutory moratorium on an increase in rent and on eviction "for reason of expired lease or holdover tenancy" which arises upon the landlord's acceptance of ERAP funds on the applicant's "behalf." (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iv], as amended by L 2021, ch 417, § 2, part A, § 5.) Moreover, as a third-party beneficiary, the approved applicant benefits from the ability to enforce the terms of the landlord's agreement with OTDA by raising as a defense that their rent was prematurely increased, or by seeking a stay of the execution of a warrant in a summary proceeding for up to 12 months from the landlord's first acceptance of the ERAP funds.^[FN6] This court finds that respondent did not enjoy a statutorily created lease between himself and his landlord for one [*6]year, nor can it be inferred that this was the parties' intent.^[FN7] (Cf. JSB Props. LLC v Yershov, 77 Misc 3d 235, 242 [Civ Ct, NY County 2022] ["(O)ccupant's ERAP application constitutes an effort to bind a landlord to treat the applicant as a tenant for one year, an act consistent with an intention to continue a landlord-tenant relationship"].)

Second, the court disagrees with Kaba that service of a notice of termination or commencement of a holdover proceeding{**80 Misc 3d at 591} is an act that violates the statute's prohibition "not to evict for reason of expired lease" after acceptance of approved ERAP funds. The Legislature chose a distinct consequence for acceptance of ERAP funds as compared to the forbearance of commencement of a proceeding required while an ERAP application is pending; to wit, that the landlord cannot evict the benefitting tenant household for 12 months after first acceptance of approved monies. The Kaba court's holding is premised on construction of the word "evict" to mean something much broader than its plain meaning, i.e. the pursuit of an eviction which occurs with the service of a notice of termination. (Kaba, 2023 NY Slip Op 50187[U], *1-2.)

"Evict" has a very explicit meaning: Black's Law Dictionary defines "evict" as "[t]o expel (a person, esp. a tenant), from real property, usu. by legal process" and "[t]o recover (property or title) from a person by legal process." (Black's Law Dictionary 697 [11th ed 2019].) Merriam-Webster's defines "evict" as "to recover (property) from a person by legal process . . . to force out." (Merriam-Webster.com Dictionary, evict [https://www.merriam-webster.com/dictionary/evict] [last accessed June 24, 2023].) It must be construed that the Legislature intended the plain meaning of the transitive action verb "evict." (See Myers v Schneiderman, 30 NY3d 1, 12 [2017] ["(C)ourts may not reject a literal construction (of a statute) unless it is evident that a literal construction does not correctly reflect the legislative intent" (citation and internal quotation marks omitted)]; Matter of Albano v Kirby, 36 NY2d 526, 530 [1975] ["No rule of construction, however, permits the segregation of a few words from their context and from all the rest of the section or rule for purposes of construction . . . and the enacting body will be presumed to have inserted every provision for some useful purpose" (citations omitted)].) By the words of the statute a respondent in a summary holdover proceeding based on "expired lease or holdover tenancy" is provided safe haven from an eviction for 12 months and is protected from any rent increase in excess of that for which the tenant applied for 12 months. (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iii]-[iv], as amended by L 2021, ch 417, § 2, part A, § 5.) This is a useful purpose which is met without the need to infer an intent to create a one-year tenancy.

The court is more concerned with adhering to the plain language of the statute, and less concerned about providing a remedy to a landlord whose occupant remains in the premises{**80 Misc 3d at 592} without paying rent after acceptance of ERAP funds. (Cf. JSB Props. LLC v Yershov, 77 [*7]Misc 3d 235, 242 [Civ Ct, NY County 2022] [finding that acceptance of ERAP benefits by a landlord creates an actionable agreement to pay rent which provides the basis for a nonpayment proceeding].) A landlord is not left without a remedy. A landlord is not barred from seeking use and occupancy from a respondent in a pending holdover proceeding, or from alternatively commencing a plenary proceeding where the ultimate relief does not comprise an eviction.

Accordingly, the court finds that petitioner properly opted not to renew respondent's lease, and properly commenced a proceeding to recover possession of the premises. The 12-month pause on respondent's eviction expired as of April 26, 2023. The proceeding may continue in its normal course.

Conclusion

Accordingly, it is ordered that respondent's motion to dismiss is denied.

"[i]f the petitioner fails to establish that the tenant [is a nuisance] . . . [and] if the landlord has accepted payment of rental arrears and agreed not to evict the tenant pursuant to paragraph (d) of subdivision two of section nine of this act, the court shall dismiss the proceeding with prejudice." (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9-a [5] [ii], as added by L 2021, ch 417, § 2, part A, § 6 [emphasis added].)

Accordingly, it is this court's opinion that in all other instances, dismissal is not required. (BOP MW Residential Mkt. LLC v Fanyu Lin, 79 Misc 3d 311 [Civ Ct, NY County 2023].)