District Court of Suffolk County, Third District, September 17, 2021

Law Offices of Sam Afra, P.C., Carle Place, for respondents.

Bass & Associates of NY, PLLC, Melville (Alyson E. Bass of counsel), for petitioner.

The respondents, Paul and Mary Orena (hereafter tenants), move by application dated August 20, 2021, seeking to stay and/or vacate their warrant of eviction pursuant to RPAPL 749 (3) and also pursuant to New York's Emergency Rental Assistance Program (hereafter ERAP) law and the U.S. Centers for Disease Control and Prevention (hereafter CDC) order issued August 3, 2021, pursuant to 42 CFR 70.2 implementing 42 USC § 264.

It is either conceded or not disputed by the parties that the tenants rented the real property premises owned by petitioner Mary Abuelafiya (hereafter the landlord) at 3 Dolphin's Rise, Lloyd Harbor, New York, on August 24, 2019. The lease was in writing and for one year and one week running through August 31, 2020, at a monthly payment rate of $6,800. The tenants defaulted in making rent payments after March 2020. The landlord's 2020 nonpayment petition was adjourned as a result of the court's COVID-19 closure until May 6, 2021. A warrant of eviction was issued May 26, 2021, as the tenants did not appear and did not file a COVID-19 hardship declaration prior to said date. The tenants assert they filed such a declaration dated May 4, 2021, via fax but could not produce a written confirmation of same. To this date the court has not received the tenants' hardship declaration, although they have had multiple court appearance opportunities to file same.

After service of the sheriff's 14 day eviction notice, the tenants filed an order to show cause dated July 15, 2021, seeking to vacate their default asserting New York's COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 moratorium. The tenants presently owe over $113,000 of rent. Said application was withdrawn after the U.S. Supreme Court ruled said statute unconstitutional. Prior to the withdrawal,{**73 Misc 3d at 578} the tenants conceded they own another house in Atlantic Beach, New York, but do not want to move there as their children are enrolled in school in Cold Spring Harbor. The tenants' teenage son answered the door at the Atlantic Beach house, although there exists a dispute as to whether this house is presently rented to a third party, so as to prevent the tenants from utilizing same.

The tenants initially request that this court vacate its prior warrant of eviction for "good cause," pursuant to the provisions of RPAPL 749 (3). Good cause has been determined to involve either fraud by the landlord or a demonstration that the tenant has a meritorious defense or involving a misunderstanding involving a settlement stipulation. These circumstances do not exist in this case. This matter seems to fall squarely within the realm of the asserted "COVID-19" stay protections provided by the legislature. As such, the court need not invoke its section 749 (3) discretionary authority to vacate its prior order.

The court will deal summarily with the tenants' CDC stay argument. The CDC eviction stay order (effective August 3, 2021) is a regurgitation of a similar predecessor regulation which has been ruled invalid by several federal courts at all levels. These courts have opined that with the expiration of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (15 USC § 9001 et seq.), there exists no statutory authority contained in 42 USC § 264 for the CDC to enact an eviction moratorium. (See Alabama Assn. of Realtors v Department of Health & Human Servs., 594 US —, 141 S Ct 2320 [2021]; Tiger Lily, LLC v United States Dept. of Hous. & Urban Dev., 992 F3d 518 [6th Cir 2021]; Terkel v Centers for Disease Control & Prevention, 521 F Supp 3d 662 [ED Tex 2021].) The dicta in these decisions opine that even if a federal statute did grant such regulatory authority, the relationship between a landlord and a tenant within a single state's borders is not a constitutionally allocated area that Congress may regulate. (See Tiger Lily, LLC v United States Dept. of Hous. & Urban Dev., citing Loretto v Teleprompter Manhattan CATV Corp., 458 US 419 [1982].) The CDC's reissuance of a previous invalidated moratorium order is vexatious and contemptible.{**73 Misc 3d at 579}

The tenants next advance the argument that New York State's ERAP law provides for a stay of this eviction proceeding (L 2021, ch 56, § 1, part BB, § 1, subpart A, § 1; L 2021, ch 417, § 2, part A). The tenants have applied for rental assistance and have produced proof of the initiation of said application in August of 2021.^[FN*] Under the ERAP program the State of New York (implemented via section 99-mm of the State Finance Law) intends to distribute billions of dollars of federal rental assistance aid. The criteria for eligibility for said funding is as follows:

1. An individual in the tenant/landlord household qualifies for unemployment or experienced a reduction in household income, or experienced financial hardship due to COVID-19, and

2. The household income is below 80% of area median income, and

3. An individual in the household can demonstrate a risk of experiencing homelessness or housing instabilities.

To be eligible, the tenants must meet all the above stated criteria. The law does not place a limitation on how much money each applicant can receive but instead limits same only by the number of months in arrears (12-15). The landlord does not wish to participate in the ERAP application.

Effective September 2, 2021, New York State amended and supplemented its prior ERAP law to provide an automatic stay for any tenant who files an application for ERAP, which continues until the ERAP state agency makes a determination on eligibility. The court is at a loss to understand how this new statute addresses the due process issues raised by the U.S. Supreme Court in Chrysafis v Marks (594 US —, 141 S Ct 2482 [2021]), which struck down New York's prior moratorium statute which allowed tenants a right to unilaterally grant themselves an indeterminate stay without requesting same from a court. Under section 8 of ERAP, the tenants again are authorized to unilaterally grant themselves a stay without mention of a mechanism for court review unless the eviction involves (see ERAP § 9-a) substantial infringement on other tenants' rights or intentional damage to leasehold premises.{**73 Misc 3d at 580}

New York law requires this court to construe its statutes so as to avoid constitutional impairment. (See generally People v Liberta, 64 NY2d 152 [1984]; United States v Rumely, 345 US 41 [1953]; Collado v Boklari, 27 Misc 3d 161 [Suffolk Dist Ct 2009].) As such, it need not delve into the realm of constitutional propriety as this matter can be decided upon its facts by simply determining that the statute inherently allows for the court to also be allowed to determine "eligibility." The court finds as a matter of fact that the tenants are ineligible for ERAP funding as they are not experiencing housing instability by virtue of the fact that they own a second house they may relocate to. Eligibility having been determined, the ERAP stay is vitiated.

Part C of the statute that amended the ERAP statute also amended New York's "COVID-19 Hardship Moratorium" statute granting a stay until January 15, 2022, upon the filing of a "hardship declaration." (L 2021, ch 417, § 2, part C.) In an effort to correct the constitutional infirmities determined by the U.S. Supreme Court in its Chrysafis decision the law was amended to provide an opportunity for landlords to make a written motion to challenge a tenant's declaration of COVID-19 hardship. The court need not address this issue as the "law of this case" is that the tenants had an opportunity to establish their right to a hardship stay and withdrew said application. (See generally Ramanathan v Aharon, 109 AD3d 529 [2013], citing Martin v City of Cohoes, 37 NY2d 162 [1975] [concerning establishing the "law of the case"].) Absent the filing of a hardship declaration or a pending application to implement same, no stay exists.

The court notes that the moratorium statute only vitiates this court's authority to execute a new warrant of eviction. It does not prohibit this court's denial of the tenants' application to seek a court ordered stay of this court's prior warrant of eviction.

Accordingly, the tenants' application to vacate their default and stay their eviction is denied. No further 14 day notice need be served by the sheriff.