Court Grants Landlord's Request to Vacate ERAP Stay

Landlord sued to evict unregulated tenant after the expiration of a 90-day termination notice served before tenant's lease ended. Tenant argued that he had applied for ERAP assistance before landlord started the court proceeding, and that landlord therefore couldn't proceed because the case was automatically stayed under the ERAP law.  Landlord pointed out that it didn't seek rent arrears or use and occupancy, and that it wouldn't participate in the ERAP program because rent was legally uncollectible. Landlord didn't wish to extend the lawfully terminated tenancy because he needed the unit for family use.

Tenant then answered the holdover petition, raising several defenses. Tenant claimed improper service of landlord's court papers, vitiation of the proceeding by acceptance of rent during the time between termination of the tenancy and commencement of the proceeding, and that the case should be dismissed because his ERAP application was already pending at the time the case was commenced. Landlord then asked the court to vacate the ERAP stay and to dismiss some of tenant's other defenses.

The court ruled for landlord, finding that service was proper and that landlord didn't accept any rent payments before commencing the eviction proceeding. The court noted that many other courts had allowed vacatur of the ERAP stay to avoid inequity, fraud, or absurd or futile results. Although tenant's ERAP application was filed before landlord commenced the eviction proceeding, to bar landlord from proceeding would deny landlord due process protections. In order to challenge the ERAP stay, a landlord must be allowed to at least commence a proceeding where the stay can be challenged. So, the court vacated the ERAP stay and put the case on its calendar for a pre-trial conference.

Barker v. Cruz: Index No. L&T312920/21, 2022 NY Slip Op 50397(U)(Civ. Ct. Bronx; 5/13/22; Ibrahim, J)