Civil Court of the City of New York, Kings County, August 14, 2023

Brooklyn Legal Services, Brooklyn (Elizabeth Reardon of counsel), for respondent.

Balsamo, Rosenblatt & Hall, PC, Brooklyn (Edward Hall of counsel), for petitioner.

Petitioner filed this instant nonpayment proceeding on or about November 29, 2022, [*2]seeking a money judgment in the amount of $40,265.28 and a final judgment of possession of the premises located at 1614 East 12th Street, Brooklyn, New York 11229, from respondent tenant, Malika Tiliaeva. Petitioner predicated its nonpayment proceeding upon service of a 14-day notice.

Respondent has lived in the subject premises for over 13 years and states that her last renewal lease began on November 1, 2019, and ended on November 1, 2020.^[FN1] Ms. Tiliaeva states she has not made direct payments to the petitioner landlord since March 2020, with the exception of a court ordered use and occupancy payment on March 9, 2023.^[FN2] Despite not paying directly, HRA (Human Resources Administration) began making payments on her behalf in June 2022,^[FN3] and ERAP (COVID-19 Emergency Rental Assistance Program of 2021) paid $18,302.40 on her behalf in December 2022.

On December 28, 2022, the respondent by counsel filed an answer. On April 11, 2023, the respondent filed the instant motion to amend her answer and for summary judgment alleging petitioner's failure to state a cause of action in that there is no landlord-tenant relationship between the parties as required under RPAPL 711 (2). On June 13, 2023, petitioner filed opposition to the motion.{**80 Misc 3d at 630}

Motion to Amend:

Respondent seeks to amend her answer.^[FN4] A motion to amend a pleading should be freely given absent a showing of prejudice or surprise to the opposing party. (Zacher v Oakdale Islandia Ltd. Partnership, 211 AD2d 712 [2d Dept 1995].) This rule is equally applicable to amendments of answers to interpose defenses. (Smith v Maya, 1999 WL 1037917, *2, 1999 NY Misc LEXIS 717, *4-5 [App Term, 2d Dept, 2d & 11th Jud Dists, July 23, 1999, No. 98-770-KC].) The petitioner does not object to the proposed amendment and therefore the portion of the motion seeking to amend the answer is hereby granted. Respondent's amended answer is deemed submitted.

Motion for Summary Judgment:

Respondent seeks summary judgment pursuant to CPLR 3212 (b), dismissing the petition with prejudice based upon petitioner's failure to state a cause of action in that there is no landlord-tenant relationship between the parties as required under RPAPL 711 (2).

RPAPL 711 outlines the grounds where a landlord-tenant relationship exists. RPAPL 711 (2) states in pertinent part: "The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held" (emphasis added). Respondent argues that because the last renewal lease between the parties expired prior to the commencement of the instant nonpayment proceeding, there is no agreement between the parties, and therefore the matter must be dismissed. Petitioner concedes that the last renewal lease has expired but argues that the parties mutual participation in the ERAP program resulted in an agreement that prohibits dismissal.

It is elementary that a nonpayment proceeding must be predicted on a default in rent owed pursuant to the agreement under which the premises are held. (615 Nostrand Ave. Corp. v [*3]Roach, 15 Misc 3d 1, 4 [App Term, 2d Dept, 2d & 11th Jud Dists 2006].) Recently in Fairfield Beach 9th, LLC v Shepard-Neely (77 Misc 3d 136[A], 2022 NY Slip Op 51351[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]) the Appellate Term, Second Department dismissed a nonpayment as improper where the nonpayment sought arrears for a time period where no lease was in effect, despite the tenant making payments post termination of the lease. The Appellate Term reiterated that "there must be a rental agreement in effect at the{**80 Misc 3d at 631} time the proceeding is commenced pursuant to which rent is due and owing." (2022 NY Slip Op 51351[U], *4 [emphasis added and citations omitted].)

Here, there is no dispute that the written lease agreement between the parties was expired when the matter was commenced. The question then becomes whether by participating in the ERAP application process did the parties enter into a new agreement.

The plain language of the ERAP statute supports a reading that an agreement has been entered into upon a landlord accepting the ERAP funds. Specifically, the ERAP statute reads a landlord's acceptance of rental arrears from ERAP "shall constitute agreement by the . . . landlord . . . 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] [iv], as amended by L 2021, ch 417, § 2, part A, § 5.) Furthermore, acceptance of ERAP funds shall "constitute [an] agreement by [a] . . . landlord" to maintain the current rental amount for the same 12-month period. (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iii], as amended by L 2021, ch 417, § 2, part A, § 5.)

In JSB Props. LLC v Yershov (77 Misc 3d 235 [Civ Ct, NY County 2022]), a nonpayment proceeding initiated after the expiration of a lease agreement but during the 12-month period following ERAP acceptance, Judge Stoller found that an occupant's ERAP application constitutes an effort to bind a landlord to treat the applicant as a tenant and the acceptance of ERAP payment resulted in an agreement to continue the landlord-tenant relationship for one year, and thus a non-pay could stand if commenced during that 12-month period. (Id. at 242.) In 100 Realty Equities LLC v Tian (78 Misc 3d 1233[A], 2023 NY Slip Op 50411[U], *3 [Civ Ct, NY County 2023]), in dismissing a holdover initiated during the 12-month period after the landlord accepted ERAP funds, Judge Stoller found that acceptance of ERAP "creates . . . an agreement that is essentially a lease" and therefore a no-cause holdover during the 12-month period after ERAP acceptance was improper.

Here, respondent asserts that her last renewal lease ended on November 1, 2020, and that she has not made any payments out of pocket since March 2020 with the exception of one court ordered use and occupancy payment on March 9, 2023.{**80 Misc 3d at 632} However, respondent also asserts that HRA has made payments on her behalf since June 2022,^[FN5] that she applied for CityFHEPS, and finally that she applied for and was approved for ERAP. Unlike the tenants in Yershov, the respondent actively and intentionally took steps to ensure that the landlord-tenant relationship would continue post expiration of the lease. The ERAP application was approved and paid out in December 2022, two years after the end of the last renewal lease. For an ERAP application to be approved, a tenant must apply.^[FN6] The tenant must submit documentation including proof that [*4]they live in the subject premises (proof of residency and occupancy) and they must attest to the fact that arrears are outstanding for an apartment for which they have an obligation to pay rent (proof of rental amount).^[FN7] OTDA (Office of Temporary and Disability Assistance), the managing and reviewing agency, may follow up with additional questions and may require further documentation before issuing a final determination. The respondent is not a passive party who simply gains the benefit of another party's contract. Instead, they are active participants in the process; specifically they initiate it with the hope and understanding that an approval will further extend their tenancy upon acceptance of payment by the landlord, a tenancy that is predicated on an agreement to pay rent. (Cf. 417 E. Realty LLC v Kejriwal, 80 Misc 3d 583 [Civ Ct, NY County 2023].)

The court cannot ignore this process, and therefore finds that the parties'—both petitioner's and respondent's—participation in the ERAP application showed their intention to reinstate the landlord-tenant relationship. This court agrees with the holdings in Yershov and Tian and finds that the language of the ERAP statute creates the basis for a finding that an agreement has been entered into, one that sets a definitive time frame and set rental amount. Therefore, the court finds that where, as here, a respondent applies for ERAP after the expiration of their lease and is awarded ERAP payments, a nonpayment may be brought pursuant to RPAPL 711 (2) during the 12-month period after ERAP acceptance. Therefore, respondent's motion for summary judgment is denied.{**80 Misc 3d at 633}

Respondent's motion to amend her answer is hereby granted. The amended answer is deemed submitted. Respondent's motion for summary judgment is denied. The matter is hereby restored to the calendar.