Landlord and Tenant - Summary Proceedings - Nonpayment Proceeding Involving Premises Covered by Coronavirus Aid, Relief, and Economic Security Act - 30-Day Notice to Vacate Requirement in 15 USC § 9058 (c) (1) Remains in Effect Absent Action by Congress

Queens Legal Services, Jamaica (Frankie Alaimo of counsel), for respondent.

Rosenblum & Bianco, LLP, Rockville Centre (Matthew Livits of counsel), for petitioner.

The decision and order on respondent's motion is as follows.{**86 Misc 3d at 1083}

Procedural History

This summary nonpayment proceeding was filed in May 2024. Respondent filed a pro se answer on June 13, 2024. In October 2024, counsel for respondent appeared and filed the instant motion to dismiss. Following the submission of opposition and reply papers, the court heard argument on January 23, 2025, and reserved decision.

Discussion/Conclusion

Respondent's motion is predicated on the argument that petitioner failed to serve a 30-day notice to vacate under the relevant provision of the CARES (Coronavirus Aid, Relief, and Economic Security) Act (15 USC § 9058 [c]).^[FN1] Respondent asserts that she lives in a "covered property" subject to the CARES Act because the rents in the building are subject to a regulatory agreement, which constitutes an "Extended Low Income Housing Commitment (ELIHC)" pursuant to provisions of the Internal Revenue Code. Petitioner primarily opposes the motion on the basis that the CARES Act provisions were tied to a "temporary moratorium" that expired when the COVID-19 public health emergency ended. Petitioner asserts that according to the United States Department of Health and Human Services, the COVID-19 public health emergency expired on May 11, 2023 (and cites to a governmental website stating the same). Accordingly, petitioner argues that the 30-day notice requirement incorporated in the CARES Act had also expired when petitioner served its predicate (14-day) notice that serves as a predicate to this proceeding. Petitioner concedes that the subject premises are part of a "covered property" under the statute.

Several courts nationwide have considered whether the CARES Act 30-day notice provision continued to be effective after the "temporary moratorium" on eviction filings incorporated in the statute ended. The majority of courts analyzing the question have held that the notice provision continued to have effect (see Housing Auth. of the County of King v Knight, 4 Wash 3d 324, 563 P3d 1058 [Feb. 20, 2025] [Holding that the 30-day{**86 Misc 3d at 1084} notice provision remains applicable, albeit only to nonpayment of rent notices]; HP Tyler's Bronx HDFC, Inc. v De La Cruz, 2025 NY Slip Op 30376[U], *3 [Civ Ct, Bronx County 2025]; MIMG LXXIV Colonial, LLC v Ellis, 316 Neb 746, 756 [2024] [Noting in concurrence that in the decision on appeal, which was dismissed on mootness grounds, the lower court had enforced the 30-day CARES Act notice requirement]; D.H. v Common Wealth Apts., 231 NE3d 284, 288 [Ind Ct App 2024] ["We . . . hold that the notice provision did not expire with the temporary eviction moratorium"]; In re Arvada Vill. Gardens LP v Garate, 2023 CO 24, ¶ 13, 529 P3d 105, 108 [2023] ["(T)he Notice Provision includes no expiration date. We cannot insert an expiration date where Congress omitted one"]; Olentangy Commons Owner LLC v Fawley, 2023-Ohio-4039, ¶ 43, 228 NE3d 621, 633 [Ct App, 10th Dist 2023] ["According to the plain language of the statute, the moratorium provision expired, but the notice provision did not"]). A smaller number of courts, most notably the Iowa Supreme Court, have held otherwise and determined that the 30-day notice requirement only applied to defaults that arose during the temporary eviction moratorium period (see MIMG CLXXII Retreat on 6th, LLC v Miller, 16 NW3d 489 [Iowa, Jan. 24, 2025]) or prior to the expiration of the COVID-19 public health emergency (see Ludwig Prop. Mgmt., LLC v Mitchell, 2024 Minn Dist LEXIS 3535 [Apr. 5, 2024, No. 07-CV-23-4019]).

Upon a review of the foregoing case law, this court is persuaded that in the absence of any subsequent legislation by Congress repealing or modifying the CARES Act 30-day notice [*3]requirement, it remains in effect. To the extent that this imposes a requirement that has outlived the emergency conditions that birthed it, the Colorado Supreme Court's observation in Garate is apt: "If Congress made a mistake and intended to include an expiration date for the entirety of section 9058, then it should amend the statute." (Garate, 2023 CO 24, ¶ 16, 529 P3d 105, 108).^[FN2] Accordingly, as petitioner does not dispute that the subject premises are a "covered property" subject to the CARES Act and because no 30-day notice was served before the commencement of this proceeding, respondent's motion is granted and the petition is dismissed upon petitioner's failure{**86 Misc 3d at 1085} to comply with a required prerequisite for maintaining this proceeding (see Lexington Ct. LLC v Torres, 85 Misc 3d 11 [App Term, 1st Dept 2024]; Greater Centennial Homes Hous. Dev. Fund, Inc. v Jones, 56 Misc 3d 48, 50 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Starrett City, Inc. v Brownlee, 22 Misc 3d 38, 39 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; De La Cruz, 2025 NY Slip Op 30376[U], *3).

The clerk shall issue a judgment dismissing the petition (see CPLR 411). The dismissal is without prejudice.