Opinion
Index No. LT-0753-21/BR
06-29-2022
PR IVC Rosemont Property LLC, Petitioner, v. Henry Jeanty, CHANTAL DAVIS AND "JOHN DOE", Respondents.
Attorney for Petitioner Warren M. Berger, P.C. Courthouse Corporate Center 320 Carleton Ave.,Ste. 6800 Central Islip, NY 11722 Respondents (Pro-se)
Unpublished Opinion
Attorney for Petitioner Warren M. Berger, P.C. Courthouse Corporate Center 320 Carleton Ave.,Ste. 6800 Central Islip, NY 11722 Respondents (Pro-se)
Stephen L. Ukeiley, J.
Upon the following papers numbered 1 to 3 read on this motion by Petitioner for an order vacating the automatic Stay of ERAP and setting the matter for a Hearing by Notice of Motion/Order to Show Cause and supporting papers 1-3; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers; Replying Affidavits and supporting papers; Other; and after hearing counsel and/or parties in support of and opposed to the motion), it is
ORDERED that petitioner's unopposed motion to vacate the automatic stay granted to respondent Chantal Davis, as a tenant filing for rental assistance benefits pursuant to the Covid-19 Emergency Rental Assistance Program ("ERAP"), is denied, in all respects. The stay is continued pending the outcome of eligibility for ERAP benefits by respondent Chantal Davis, which the Court determines was applied for by respondent Chantal Davis under Application No. ERAP H1010, and is still pending without determination.
Petitioner filed the instant non-payment Notice of Petition and Petition dated 08/26/2021 with the Court on 08/30/2021, with completed service upon respondents on 09/24/2021. No formal answering papers were filed by respondents pro se, except an application was filed on 10/06/2021 by respondent Chantal Davis, for rental assistance from the Covid-19 Emergency Rental Assistance Program ("ERAP"), under Application No. ERAP H1010, which is handled by the Office of Temporary and Disability Assistance ("OTDA"), with any aggrieved final determination to be filed through the appeal process with OTDA.
After a stay was granted by the Court, the matter was adjourned to 01/26/2022; to 03/16/2022; to 05/25/2022; and to 06/29/2022, where the matter was removed from the Court calendar, due to the submission of the instant motion on 06/22/2022.
The undisputed facts in the petition establish that petitioner is the owner and landlord of real property located at 1407 Yarrow Circle, Bellport, NY 11713 ("premises"), and seeks possession of the premises, a warrant of eviction, a judgment for rental arrears in the sum of $18,578.66, fair value for use and occupancy, and interest from December 1, 2020.
Petitioner's instant motion demonstrates, by the affidavit of its property manager, Lauren Duerbeck ("Duerbeck"), that respondent Henry Jeanty entered into a lease for the premises on 04/01/2020 with the Landlord assignor, Atlantic Point TT LLC., which lease was then assigned to petitioner PR IVC Rosemont Property LLC. by written assignment on 11/09/2020, with a monthly rent totaling $2,414.26, and the lease expired on 04/01/21, with respondent Henry Jeanty moving out of the premises, and respondent Chantal Davis holding over without permission of petitioner.
Duerbeck asserts that "the apartment is infested with roaches, spreading to other apartments as well" and "The Suffolk County Police and the ASPCA have been summoned to this apartment." She also asserts "The premises need to be vacated in order to be fumigated." The statements suggest the existence of a "nuisance" exception to ERAP funding requirements, and the basis for a lifting the ERAP stay for eviction.
Duerbeck further asserts that petitioner "has no intention in joining in the ERAP application filed by DAVIS as that will require us to permit the Respondent [Davis] to remain in the premises for another year."
Duerbeck's affidavit also asserts that respondent Chantal Davis has paid no rent or use and occupancy to petitioner, in contrast to petitioner, who continues to pay property taxes, insurance, fuel costs and maintenance costs on the premises.
Duerbeck contends that respondent Chantal Davis holds over from the expiration of the lease on 04/01/21, and continues in possession of the premises without permission of petitioner after default, and remains as a "month-to-month" tenant under the same terms and conditions of the lease, with rent having been demanded by certified mail pursuant to RPAPL §711, as stated in the petition.
Duerbeck, in her affidavit in support of the motion, on behalf of petitioner, contradicts the statement in the ad damnum clause ("Wherefore Clause") of the petition, wherein petitioner seeks an award of possession, a warrant of eviction, judgment for rental arrears of $18,578.66, fair value of use and occupancy, and interest from December 1, 2020 (emphasis added), and replaces this demand stated in the petition with a waiver of rental arrears of $18,578.66, a waiver of fair value of use and occupancy, and a waiver of interest from December 1, 2020. This is based upon the sworn statement that petitioner "has no intention in joining in the ERAP application filed by DAVIS as that will require us to permit the Respondent [Davis] to remain in the premises for another year," though petitioner has failed to seek permission to formally amend and withdraw the original language in the ad damnum clause ("Wherefore Clause") of the petition. Also, Duerbeck asserts that "no rent or use and occupancy payments from DAVIS has been received..."
The Court notes that section 8 of subpart A of section 1 of part BB of section 1 of chapter 56 of the Laws of 2021 as amended by L.2021, ch 417, §2, part A, §4), states:
"Except as provided in section nine-a of this act, eviction proceedings for a holdover or expired lease, or non-payment of rent or utilities that would be eligible for coverage under this program shall not be commenced against a household who has applied for this program or any program administering federal emergency rental assistance program funds unless or until a determination of ineligibility is made...all proceedings shall be stayed pending a determination of eligibility (emphasis added)."
"When constructing a statute, the Court must conclude that the legislature deliberately placed wording to serve its intended purpose" (see Sea Park East L.P. v Foster, 74 Misc.3d 213 [Civ Court, City of New York 2021]; citing Matter of Rodriguez v Perales, 86 N.Y.2d 361 [1995]; Bitzarkis v Evans, 73 Misc.3d 827 [Civ Court 2021]). "Had the legislature intended that only eligible, applicants be granted a stay, pending determination, the statute would have so stated" (see Sea Park East L.P. v Foster, supra at 215, 216]). "The plain language of the statute clearly indicates that any pending ERAP application stays proceedings until an eligibility determination is made" (Id. at 216; see also L.2021, c. 417, Part A, §4).
In addition, a landlord does not possess the right to dissolve the stay by refusing to accept ERAP funding and/or refusing to provide required input for the application to be completed, and upon the landlord's refusal, the tenant shall be entitled to a credit for the ERAP grant that the landlord refused to accept (see Harbor Tech LLC. v Correa, 73 Misc.3d 1211 [A][Civ Ct, Kings Cty 2021]).
Here, the Court notes that an existing Petition may not be amended to assert a "nuisance" exception to ERAP. Rather, a new proceeding must be commenced. Notwithstanding this point of law, the Court finds Duerbeck's statements that:
"The apartment is infested with roaches, spreading to Other apartments as well;
"The Suffolk County Police and the ASPCA have been summoned to this apartment; and
"The premises need to be vacated in order to be fumigated,"
with no further discussion, to be conclusory and insufficient to support a "nuisance" exception to the ERAP stay and funding (see L.2021, ch. 417, Part A, §6 [intentionally causing substantial damage, or for persistent and unreasonable behavior that infringes on the use and occupancy of others, or which causes a substantial safety hazard to others]).
Moreover, petitioner's unopposed motion which seeks to vacate the automatic stay granted to respondent Chantal Davis, as a tenant filing for rental assistance benefits pursuant to the Covid-19 Emergency Rental Assistance Program ("ERAP"), is denied, in all respects. The stay is continued pending the outcome of eligibility for ERAP by respondent Chantal Davis, which the Court determines was applied for by respondent Chantal Davis under Application No. ERAP H1010, and is still pending without determination (see Sea Park East L.P. v Foster, supra).
The foregoing constitutes the decision and order of this Court.