July Insights
By Eileen O’Toole, Esq.
The NY State court system, as well as NYC’s Civil Court, took steps at the end of June to ease some of the restrictive procedures put in place during the COVID-19 pandemic. Administrative Order 158/22 [LVT #32132] addresses a number of procedural matters, while the Civil Court’s DRP-223 [LVT #32131] focuses on eliminating some steps in certain cases for obtaining default judgments. AO/158/22 points out that, if there is a pending ERAP application, eviction proceedings continue to be stayed until a final determination of eligibility for rental assistance is issued by the state’s Office of Temporary and Disability Assistance (OTDA). The AO notes that ERAP does not stay proceedings based on nuisance behavior or property damage.
Litigation challenging ERAP stays continues, with varying results. In EQR-Hudson Crossing, LLC v. Magano [LVT #32139], a New York County housing court denied the landlord’s motion to vacate a stay based on an ERAP application filed by an unauthorized subtenant who landlord claimed didn’t pay rent and therefore was an “unintended beneficiary” of the ERAP program. The court disagreed, noting that the occupant was “obligated to pay rent,” just not to the landlord. And the subtenant had requested that the ERAP program pay the landlord, not the tenant, any awarded rent funds.
On the other hand, a New York County housing court vacated an ERAP stay in Valsac 908 LLC v. Crespo [LVT #32144], an eviction case by landlord against its former super, who lived in an apartment at the building as an incident of employment. It was undisputed that the super never paid rent.
A New York County housing court also ruled, in Park Tower S. Co. LLC v. Simons [LVT #32141], that “provisional” approval of an ERAP application—that is, approval by OTDA without payment because the landlord refused to accept the funds—dissolved the ERAP stay and that an eviction case could therefore proceed on the court’s calendar. The court noted that its interpretation of the ERAP law here differed from that expressed by OTDA on the agency’s website.
In Robo LLC v. Matos [LVT #32143], a Bronx housing court refused to vacate an ERAP stay, despite OTDA’s statement that it wasn’t currently approving funds for tenants of subsidized housing, and despite the fact that a substantial portion of tenant’s arrears predated the March 2020 starting point for ERAP funding.
The DHCR continues to decide administrative appeals of Rent Administrator Orders that dismissed applications for high-rent/high-income deregulation of rent-regulated apartments. Some recent decisions are less focused on the “Explanatory Addenda” issued after HSTPA was enacted to emphasize that Orders of Deregulation decided before June 14, 2019, wouldn’t result in deregulation if a rent-stabilized lease for the subject apartment remained in place until after that date. Appellate Courts have now upheld those agency rulings. Recent DHCR decisions such as Matter of 145 East 16th Street LLC [LVT #32146] focus on questions raised by DHCR delays of two years or more in processing applications, with the DHCR insisting that it didn’t “withhold” issuance of rulings to force dismissal under HSTPA amendments to the RSL.