Court Finds No Merit to Tenant's Second ERAP Application

Landlord sued to evict tenant in April 2022 for nonpayment of rent dating back to August 2021 and totalling $8,011. Among other things, tenant claimed that he had applied for ERAP rental assistance benefits. In July 2022, landlord asked the court to vacate the ERAP stay because tenant already had obtained 15 months of ERAP rent payment benefits through a prior application. Landlord questioned whether tenant could apply for ERAP again after getting 15 months of benefits already.

The court directed tenant to deposit $8,011 with the court while the case was pending, but tenant then sought a 100 percent rent abatement based on various rent-impairing violations. Landlord claimed that tenant was acting frivolously.

The court ruled for tenant in part, finding that tenant was entitled to a 100 percent rent abatement from November 2021 through Jan. 5, 2023. But monies already paid should not be accorded to tenant as an abatement. Under MDL Section 302-a, tenant rent paid voluntarily cannot be recovered even if a tenant ultimately prevails on an abatement defense. Since ERAP already paid tenant's rent for August through October 2021, tenant wasn't entitled to an abatement for that time period. And while the ERAP program doesn't limit the number of times a tenant can apply for ERAP benefits, the court warned tenant's attorneys that some of their actions suggested deliberate misrepresentation by an attorney during the course of the proceedings. Since tenant's first round of ERAP benefits had already been paid out in a previous case, it shouldn't have been a basis for a stay in this proceeding. There was no merit to the second ERAP application. 

One Lenox LLC v. Rivers: Index No. LT 30725/92/22, 2023 NY Slip Op 31554(U)(Civ. Ct. Kings; 5/1/23; Cohen, J)