By Eileen O’Toole, Esq.
Pandemic-related procedural issues continue to surface in court rulings.
Several recent decisions denied a landlord’s motions to vacate ERAP stays. In 14 N Highstreet LLC v. Clowney (LVT #32231), a Mt. Vernon court refused to vacate an ERAP stay where the respondent was an eligible Section 8 tenant although the owner pointed out that OTDA wouldn’t process ERAP applications for subsidized tenants until after other applications were processed. In Crotona Holdings LLC v. Santana (LVT #32240), a Bronx court upheld an ERAP stay where the tenant owed both pre-pandemic rent and 18 months of rent already paid by the LRAP program. A Yonkers court ruled that an ERAP stay couldn’t be vacated solely in response to the owner’s claim that program funds had been exhausted. In that case, Raci v. Lopez (LVT #32242), the tenant had applied for assistance through a local Yonkers Y-ERAP program that could cover up to 18 months of unpaid rent. However, in Fernandez v. Jones (LVT #32249), another Bronx housing court case, an ERAP stay was lifted where the respondent was a licensee who had paid rent to a former tenant and had no landlord-tenant relationship with the petitioner-owner.
A Kings County housing court decision addressed a question raised by the pandemic-era procedure of court assignment, rather than petitioner designation, of an initial return date for a holdover proceeding. Petitioners who file a notice of petition and petition through NYSCEF currently must leave the initial return date unassigned and wait for court notification of an actual return date. So, when can the papers actually be served on the tenant? In Hill v. Cubilete (LVT #32237), the owner had completed service of its petition shortly after filing on NYSCEF. But RPAPL §733(1) requires that a notice of petition and petition in a holdover proceeding be served between 10 and 17 days before the initial return date in court. Since no return date had yet been assigned when the landlord served the petition on the tenant, the case was dismissed for “untimely” service.
In a New York County case, 208 W 20th St. LLC v. Blanchard (LVT #32232), the court dismissed an eviction petition where the landlord filed proof of service of the petition nine days before the initial court date. RPAPL §733 requires filing of proof of service at least 10 days before the first court appearance. Landlord argued that it had three days after service was completed to file the affidavit of service and that General Construction Law §25-a further allowed for filing on the next business day. The court disagreed, noting that compliance with the filing rules was required and landlord could have timely filed the proof of service electronically, even over a weekend.
