April Insights

By Eileen O’Toole, Esq.

By Eileen O’Toole, Esq.

While the end of New York’s eviction moratorium on Jan. 14, 2022, permitted restoration to court calendars of eviction proceedings previously put on hold for tenants who had filed Hardship Declarations, the filing of ERAP applications by tenants seeking emergency rental assistance from New York State has remained a basis for the continued stay of many Housing Court proceedings. A number of recent cases show that owners are seeking to vacate ERAP stays, with mixed results.

For example, in Hudson Ave. Hous. Assoc. LLC v. Howard [LVT #31992], the court denied a landlord’s request to vacate an ERAP stay in a holdover proceeding where the landlord said that it would waive any claim for rent in order to get possession. A Warren County court found that the plain language of the ERAP law stays both nonpayment and holdover proceedings until a ruling is made by the state on the tenant’s application. The court noted that the landlord could seek a due process hearing on any question concerning whether the tenant was engaging in conduct to frustrate, delay, or otherwise impede a final determination of her ERAP application.

In Lichmore-Smith v. Medina [LVT #32009], a Kings County court dismissed a holdover proceeding commenced by a landlord after the tenant had filed an ERAP application, finding that the ERAP law clearly prohibited a landlord from commencing an eviction proceeding against a household that has applied for the program.

On the other hand, in 2986 Briggs LLC v. Evans [LVT #31993], a Bronx court identified whether it had the authority to vacate an ERAP stay as a key question, found that it had such authority, and vacated the ERAP stay in a holdover proceeding against occupants who remained in a rent-stabilized apartment after the tenant died. Even if the occupants may have to pay use and occupancy while the case was pending, the court found that since they had no obligation to pay rent, and since the ERAP law referred only to “rent” due under a written or oral rental agreement, the ERAP stay could be lifted while the case proceeded to resolution on the merits.

A Queens court also lifted an ERAP stay in Karan Realty Assoc. LLC v. Perez [LVT #31999]. In that case, an owner sued to evict a former building super after the super’s employment was terminated. The court ruled for the owner, finding that the super had no lawful obligation to pay rent and that it appeared that his ERAP filing was done simply to delay the eviction proceeding. The owner also stated that, to avoid creating a tenancy, it would not participate in the ERAP application process. And since the super hadn’t submitted tenant information and documentation requested by the state, his ERAP application would likely be denied.

In Kelly v. Doe [LVT #32015], a Kings County court vacated an ERAP stay where the application had been filed by a squatter who had broken into and re-occupied an apartment after being evicted.

Finally, in Barton v. Bixler [LVT #32011], a Suffolk County court vacated the ERAP stay in a nonpayment proceeding after the ERAP program had paid 15 months’ of tenant’s rent arrears, leaving another nine months of rent due. The court found that to interpret the ERAP statute to mean that the landlord was waiving any other rents due would result in a violation of the landlord’s constitutional rights. If the tenant didn’t pay the remaining arrears by a court-ordered date, the court concluded that landlord could seek both money and possessory judgments.