Civil Court of the City of New York, Kings County, November 21, 2024

Rosenblum & Bianco, LLP, Rockville Centre (Tracy William Boshart and John Bianco of counsel), for petitioner.

The Legal Aid Society, Brooklyn (Stacey Ann Harkey of counsel), for Tawanda Thompson, respondent.

The decision and order on this motion is as follows:

On January 13, 2020, the parties settled this nonpayment proceeding with a stipulation granting petitioner a judgment in the sum of $4,274 and staying execution of the warrant of eviction through February 28, 2020, for payment. Thereafter, with the ensuing COVID-19 pandemic, the case began a protracted period of inaction, with the court repeatedly notifying the parties of rescheduling. On May 18, 2021, respondent appeared by counsel.

On September 27, 2021, respondent filed notice of the filing of an application to the Emergency Rental Assistance Program (ERAP) (NY St Cts Elec Filing [NYSCEF] Doc No. 22). Petitioner then moved to vacate the ERAP stay (NYSCEF Doc No. 23). The parties then stipulated to withdrawal of the motion (NYSCEF Doc No. 32).

Petitioner now moves to restore, to amend the petition to date, to vacate the ERAP stay, to obtain a default judgment and warrant, to permit execution of the warrant, and to amend all pleadings and papers to "Sea Park East LLC" as petitioner. Respondent cross-moves for denial of the motion-in-chief, for vacatur of the stipulation of settlement, and for dismissal based upon violation of the Violence Against Women Act (VAWA).

The court turns first to the branches of each motion addressed to amend the pleadings, papers, and caption. Petitioner asserts that on May 24, 2023, title to the building was transferred to New Sea Park East Housing Development Fund. As evidence of this transaction, petitioner annexes a deed dated May 23, 2023 (NYSCEF Doc No. 37), evincing a conveyance from SP AH LLC, SP Related Acquisition, LLC, SP AX LLC, SP DJCJ LLC, SP JLT LLC, SP JMA LLC, SP SR LLC, SP SAGT LLC and SP AAGT LLC (the SP entities) to New Sea Park East Housing Development Fund Corp. Petitioner further provides a nominee agreement (NYSCEF Doc No. 38) and an assignment and assumption of leases (NYSCEF Doc No. 39) to Sea Park East LLC (doing business as New Sea Park East LLC).

In opposition, respondent acknowledges that there has been a provisional approval of an ERAP application, so that there is no longer a basis for a stay, but asserts that Sea Park East LLC lacks standing to seek its vacatur.{**85 Misc 3d at 766}

The statute providing for a stay states that "in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, . . . all proceedings shall be stayed pending a determination of eligibility" (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as amended by L 2021, ch 417, § 2, part A, § 4). The Appellate Term, considering an ERAP stay, has noted that "a stay was already in effect by operation of law, which stay will only expire upon the Office of Temporary and Disability Assistance's determination of the ERAP application" (Avalonbay Communities, Inc. v Dukes, 78 Misc 3d 134[A], 2023 NY Slip Op 50453[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). The stay, as the court recognized, is implemented not by judicial action but by operation of law, and it lifts upon a determination of eligibility.

No judicial action is necessary to the dissolution of the stay, when the relevant statute provides for it to lift by operation of law upon a determination of eligibility. The court therefore grants the branch of the petitioner's motion seeking vacatur of the stay to the extent of recognizing that the stay has lifted by operation of law.

The branch of petitioner's motion seeking to substitute Sea Park East LLC as petitioner is granted. By considering the submissions of both parties, the court has been able to ascertain the [*2]chronology of transactions. Sea Park East Inc. transferred title to Sea Park East Housing Development Fund Corporation on October 14, 2004. Multiple transactions took place on May 24, 2023. Sea Park East Housing Development Fund Corporation conveyed title to the SP entities. The SP entities conveyed title to New Sea Park East Housing Development Fund Corporation, which executed both a declaration of interest and nominee agreement and an assignment and assumption agreement in favor of Sea Park East LLC, recognizing it as both beneficial owner and landlord. The documents executed on May 24, 2023, were recorded simultaneously. Given the timing and nature of the transactions ultimately resulting in Sea Park East LLC as beneficial owner and landlord, the court finds it appropriate to grant the branch of petitioner's motion seeking substitution of petitioner.

The balance of petitioner's motion seeks judgment, issuance and execution of a warrant of eviction, alleging breach of a stipulation, while respondent seeks vacatur of that stipulation and dismissal upon its vacatur. Respondent alleges the unknowing waiver of defenses and seeks dismissal specifically on{**85 Misc 3d at 767} the grounds that the rent demand served did not include a "notice of occupancy rights" and certification form required by the Violence Against Women Act (VAWA).

While the current iteration of 34 USC § 12491 became effective on October 1, 2022, its predecessor, in effect when this case commenced, provided that

"[t]he Secretary of Housing and Urban Development shall develop a notice of the rights of individuals under this section . . .

"[and] [e]ach public housing agency or owner or manager of housing assisted under a covered housing program shall provide the notice . . . to an applicant for or tenants of housing assisted under a covered housing program . . .

"with any notification of eviction or any notification of termination of assistance" (former 34 USC § 12491 [d] [1], [2] [C]).

While petitioner does not deny that it is a landlord that would be subject to the requirements of VAWA, it argues, in essence, that respondent, to be entitled to the protections of the statute, must first establish that she is a victim of domestic violence.

Petitioner's assertion evinces a misapprehension of the fundamental issue. The relevant question here is not whether respondent is a victim of domestic violence subject to the protections of VAWA, but whether respondent falls within the category of persons entitled to notice that such protections exist. Petitioner's argument is, in essence, that only those who establish that they are victims of domestic violence are entitled to notice of the protections' existence.

The statutory purpose, however, is evinced by the statute's plain language, which requires notice to both tenants and applicants when certain events transpire, events that include notification of eviction. Here, the petitioner fails to distinguish between the substantive protections of VAWA and notice of their existence.

Petitioner asserts that no notice was required, and none given. The plain language of the statute requires that such notice accompany the notice of eviction on which petitioner relies. While petitioner would have this court hold that only those entitled to the protections of VAWA be given notice of their existence, notably absent from statements in support of petitioner's motion is any assertion of how petitioner is to know who is{**85 Misc 3d at 768} entitled to such notice. The statutory notice is required to be given to "an applicant for or tenants of housing assisted under a covered housing program" (34 USC § 12491 [d] [2]). Rules have been implemented regarding the issuance of such notice (24 CFR 5.2005 [a] [1]) and are entirely consistent with the statutory requirement of notice to both applicants and tenants. VAWA nowhere defines the word "tenant" and it is therefore given its plain meaning (see Sassi v Mobile Life Support Servs., Inc., 37 [*3]NY3d 236, 241 [2021]). Petitioner acknowledges that it served no notice pursuant to VAWA, which plainly required that it be served.

The defense of noncompliance is plainly one that is nuanced and requires analysis of both the United States Code and Code of Federal Regulations. It is also a plainly meritorious defense to this proceeding. Stipulations are subject to vacatur when

"tenants, while unrepresented by counsel, inadvertently waive[ ] their right to assert [a] fundamental defect in the proceeding (see Matter of Frutiger, 29 NY2d 143, 150 [1971] . . . ; 600 Hylan Assoc. v Polshak, 17 Misc 3d 134[A], 2007 NY Slip Op 52225[U] [App Term, 2d & 11th Jud Dists 2007] . . . ; Hegeman Asset LLC v Smith, 5 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2004]; see also Solack Estates v Goodman, 78 AD2d 512 [1st Dept 1980])" (Kosc Dev., Inc. v Scott, 28 Misc 3d 138[A], 2010 NY Slip Op 51474[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Here, respondent has demonstrated the existence of a valid, complete defense to this proceeding, one that is not patent, but only ascertainable by determination that the building is within the aegis of VAWA.

Respondent's motion is granted, and the stipulation of settlement (NYSCEF Doc No. 16) is vacated. Upon its vacatur, respondent's motion is granted, and the proceeding is dismissed.