Civil Court of the City of New York, New York County, March 3, 2021

Law Offices of Kenneth Lieblich, New York City, for Mega Wear Inc., respondent.

Rosenberg & Estis, P.C., New York City (Jason R. Davidson of counsel), for petitioner.

In this holdover proceeding involving a commercial tenancy, respondent Mega Wear Inc. brings a pre-answer motion to dismiss this summary proceeding on the grounds that the [*2]proceeding was commenced in violation of Governor Andrew M. Cuomo's Executive Order (A. Cuomo) Nos. 202.28, 202.48, and 202.57 (9 NYCRR 8.202.28, 8.202.48, 8.202.57), issued in response to the COVID-19 pandemic, which, among other things, bar the initiation of any proceeding or enforcement of an eviction for nonpayment of rent of a commercial tenant facing financial hardship due to the COVID-19 pandemic. Petitioner SRI Eleven 1407 Broadway Operator LLC opposes the motion, arguing that those executive orders do not apply to commercial holdover proceedings.

The issue presented is whether the moratorium on evictions of commercial tenants contained in Executive Orders 202.28 and 202.48 (as continued by Executive Order 202.57) (collectively, the Executive Orders) applies to commercial holdover proceedings, where the expiration of the commercial lease was pursuant to a conditional limitation based on the nonpayment of rent. Respondent's pre-answer motion to dismiss also presents difficult and novel questions as to how an alleged violation of the Executive Orders would fit into the procedural framework of the Civil Practice Law and Rules and into the substantive framework of summary proceedings under article 7 of the Real Property Actions and Proceedings Law.{**71 Misc 3d at 783}

According to the petition, petitioner SRI Eleven 1407 Broadway Operator LLC (landlord) is the landlord of commercial space designated as suites 2301 and 2300 on the 23rd floor of the building located at 1407 Broadway in Manhattan (the premises) (see respondent's exhibit A in support of mot, petition ¶¶ 1-2). Respondent Mega Wear Inc. (tenant) allegedly entered into a written lease with petitioner, under which tenant agreed to pay rent for the premises at the rate of $25,345.25 per month (id. ¶¶ 2, 11). Respondents Sun's Global Trading Inc. and "XYZ Corp." are alleged undertenants, and they have not appeared (id. ¶ 3).

Termination of the Lease

By a "Five (5) Day Notice to Tenant" dated July 7, 2020, landlord notified tenant that the lease will be terminated, effective July 15, 2020, "based upon Tenant's failure to pay the Arrears [i.e., rent and additional rent]," as required under the lease (tenant's exhibit A in support of mot, exhibit B to holdover petition at 5).

Executive Orders and Administrative Orders Issued during the COVID-19 Pandemic

Meanwhile, on March 7, 2020, in response to the COVID-19 pandemic, Governor Cuomo had declared a disaster emergency in the State of New York pursuant to Executive Order (A. Cuomo) No. 202 (9 NYCRR 8.202), and issued additional executive orders to deal with the pandemic. Executive Order (A. Cuomo) No. 202.8, which was issued on March 20, 2020, provides, in relevant part, "There shall be no enforcement of either an eviction of any tenant residential or commercial, or a foreclosure of any residential or commercial property for a period of ninety days [i.e., until June 18, 2020]" (9 NYCRR 8.202.8).

The court system also issued a series of administrative orders to deal with the COVID-19 pandemic.

On March 17, 2020, Chief Judge Janet DiFiore issued Administrative Order AO/3/20, which determined that trial courts "shall remain open to handle all essential matters and that the handling of non-essential matters will be postponed to the foreseeable future" (Admin Order of Chief Admin Judge of Cts AO/3/20, available at http://nycourts.gov/whatsnew/pdf/AO-3-20.pdf [accessed Feb. 26, 2021]). On March 22, 2020, Chief Administrative Judge Lawrence Marks issued Administrative{**71 Misc 3d at 784} Order AO/78/20, which directed that, "effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached as Exh. A. This directive applies to both paper and electronic filings" (Admin Order of Chief Admin Judge of Cts AO/78/20, available at http://nycourts.gov/whatsnew/pdf/AO-78-20.pdf [accessed Feb. 26, 2021]). On April 8, 2020, Administrative Order AO/85/20 continued the ban on filings in nonessential matters, stating, "No new nonessential matters may be filed until further notice; nor may additional papers be filed by parties in pending nonessential matters" (Admin Order of Chief Admin Judge of Cts AO/85/20, available at http://nycourts.gov/whatsnew/pdf/AO-85-20.pdf [accessed Feb. 26, 2021]). On May 1, 2020, Administrative Order AO/87/20 authorized the filing of, among other things, motions and cross motions in pending matters, effective May 4, 2020 (Admin Order of Chief Admin Judge of Cts AO/87/20, available at http://nycourts.gov/whatsnew/pdf/AO-87-20.pdf [accessed Mar. 1, 2021]).

On May 7, 2020, Governor Cuomo issued Executive Order 202.28, which states, in relevant part,

"There shall be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020 [i.e., until August 19, 2020]" (9 NYCRR 8.202.28).

On July 6, 2020, Governor Cuomo issued Executive Order 202.48, which states, in relevant part,

"The directive contained in Executive Order 202.28, as extended, that prohibited initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, is continued only insofar as it applies to a commercial tenant or commercial mortgagor, as it has been superseded by legislation for a residential tenant, and residential mortgagor, in Chapters 112,{**71 Misc 3d at 785} 126, and 127 of the Laws of 2020" (9 NYCRR 8.202.48).

On August 5, 2020, Executive Order (A. Cuomo) No. 202.55 continued the directives contained in Executive Order 202.48, among other executive orders, through September 4, 2020 (9 NYCRR 8.202.55).

Meanwhile, on June 18, 2020, Chief Administrative Judge Marks issued Administrative Order AO/127/20, which ordered that, effective June 20, 2020, petitions in eviction proceedings involving residential or commercial property pursuant to article 7 of the Real Property Actions and Proceedings Law (whether brought on the ground that the respondent defaulted in the payment of rent or on some other ground) must include an attorney affirmation or petitioner's affidavit confirming that the summary proceeding comports with the requirements of state and federal directives, including the requirement contained in Executive Order 202.28 (see Admin Order of Chief Admin Judge of Cts AO/127/20, available at http://nycourts.gov/whatsnew/pdf/AO-127-20.pdf [accessed Mar. 1, 2021]). On July 7, 2020, Chief Administrative Judge Marks issued Administrative Order AO/143/20, which eliminated the requirement of the attorney affirmation or petitioner's affidavit of compliance in eviction proceedings (Admin Order of Chief Admin Judge of Cts AO/143/20, available at http://nycourts.gov/whatsnew/pdf/AO-143-20.pdf [accessed Mar. 1, 2021]).

On August 13, 2020, Chief Administrative Judge Marks issued Administrative Order AO/160A/20, setting forth procedures and protocols for the conduct of residential and commercial eviction matters before the New York State courts. AO/160A/20 states, in relevant part:

"Continued Suspension of Eviction Matters Commenced After March 16, 2020: Eviction proceedings commenced after March 16, 2020 shall, upon the filing of a petition (if no answer is [*3]filed thereafter) or the filing of an answer, be suspended until further order. Notwithstanding the foregoing, eviction matters in which all parties are represented by counsel shall be eligible for calendaring for virtual settlement conferences" (Admin Order of Chief Admin Judge of Cts AO/160A/20, available at http://nycourts.gov/whatsnew/pdf/ao160a20.pdf [accessed Feb. 22, 2021]).

Administrative Order AO/160A/20 superseded Administrative Order AO/127/20 (id.){**71 Misc 3d at 786}.

On August 19, 2020, Administrative Judge of the Civil Court of the City of New York Anthony Cannataro^[FN1] issued Civil Court of City of New York Directive and Procedure 214, effective August 19, 2020 (DRP-214), which stated, in relevant part:

"BACKGROUND:

"In response to the Coronavirus emergency declared in Executive Order 202, Governor Cuomo imposed several temporary suspensions and modifications of laws, most pertinently here Executive Order 202.28, as amended by Executive Orders 202.38, 202.48, and 202.55. One of the restrictions contained therein stayed commencement and enforcement of commercial eviction matters against tenants facing financial hardship due to COVID-19. According to the time limitations set forth in Executive Order 202.28, many of those restrictions, including the stay of commencement and enforcement of commercial eviction proceedings against tenants facing financial hardship due to COVID-19, are set to expire on August 19, 2020.

"In advance of the expiration of those restrictions, the Chief Administrative Judge issued Administrative Order 160A/20 which, among other things, discontinued the affidavit requirement contained in Administrative Order 127/20, and lifted the stay of proceedings imposed on eviction cases commenced before March 17, 2020. However, Administrative Order 160A/20 continued the automatic stay of all eviction cases commenced after March 16, 2020.

"Accordingly, the following directives shall apply.

"DIRECTIVE: . . .

"Motions: Civil Court is accepting both procedural and dispositive motions in commercial eviction cases" (DRP-214, available at http://nycourts.gov/courts/nyc/SSI/directives/DRP/DRP214.pdf [accessed Mar. 1, 2021]).

DRP-214 was rescinded on August 21, 2020 (see id.).

On August 20, 2020, Governor Cuomo issued Executive Order 202.57, which states, in relevant part:

"The directive contained in Executive Order 202.48, {**71 Misc 3d at 787}which modified the directive in Executive Order in 202.28 that prohibited the initiation of a proceeding or enforcement of an [*4]eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage is continued through September 20, 2020" (9 NYCRR 8.202.57).

The Instant Holdover Proceeding

On August 21, 2020, landlord commenced this holdover proceeding against tenant and the undertenants, alleging that they remain in possession of the premises without permission after the term of the lease had expired (see tenant's exhibit A in support of mot, petition ¶ 7).

On September 14, 2020, tenant moved to dismiss the holdover petition pursuant to CPLR 3211 (a) (1), (2), (3), and (7), on the ground that commencement of this holdover proceeding was in violation of the Governor's Executive Orders barring the initiation of proceedings to evict commercial tenants for nonpayment of rent (tenant's notice of mot, affirmation of tenant's counsel ¶ 1). Landlord opposed the motion.

Although tenant moved to dismiss the petition pursuant to CPLR 3211 (a) (1), (2), (3), and (7), tenant's three-page affirmation in support of the motion did not discuss the applicable standards for a motion to dismiss under those provisions.

On November 2, 2020, this court held oral argument on the motion and asked the parties to submit supplemental papers on the following procedural and substantive issues raised by tenant's pre-answer motion to dismiss:

• What are the rules of construction applicable to the interpretation of the Executive Orders? Can the court look to public statements by the Governor to interpret the intent of the Executive Orders?

• What is the nature of a violation of Executive Order 202.28? Does it impose a pleading requirement upon landlords, a condition precedent to suit, or an affirmative defense that must be raised?

• Does a CPLR 3211 motion lie for violation of the Executive Orders? Would it be an issue of subject matter jurisdiction, a failure to state a cause of action, or is it something else?

• Does "facing financial hardship due to COVID-{**71 Misc 3d at 788}19" require a particularized showing by the tenant? Or can it be determined categorically/per se (i.e., nonessential businesses closed by executive order)? Does the landlord have to engage in any inquiry about whether the tenant is suffering financial hardship before commencing suit?

• If the Executive Orders were interpreted to apply only to nonpayment proceedings, would that create too great an incentive for landlords to terminate a lease to get into court, when the landlord would have only commenced a nonpayment proceeding? Would that be an absurd or unjust result?

• Assuming a violation of Executive Order 202.28 is established, is dismissal the only appropriate relief for the violation? Why not a stay?

The parties declined the opportunity to respond to each other's supplemental papers.

On December 2, 2020, the parties submitted supplemental affirmations, and the motion was marked fully submitted.

The moratorium on the evictions of commercial tenants in Executive Orders 202.28 and 202.48, as extended in subsequent orders, does not fit neatly into any existing ground for dismissal under CPLR 3211 (a). Tenant's pre-answer motion to dismiss raises two intertwined, threshold procedural issues. To determine the applicable legal standards on this motion, this court must determine (1) whether a violation of the moratorium on evictions of commercial tenants in the Executive Orders may be properly brought on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) or must be brought as an affirmative defense; and (2) assuming that a tenant may raise the alleged violation on a motion to dismiss, the ground of CPLR 3211 (a) under which the alleged violation falls.

A. Whether a Violation of the Executive Orders Falls under CPLR 3211 (a) (7)

Tenant appears to argue that the Executive Orders impose a pleading requirement upon landlords. Tenant takes the position that, in a petition for a summary proceeding pursuant to article 7 of the RPAPL, a petitioner landlord must plead and prove at trial that a respondent tenant was not suffering from COVID-19 financial hardship (supplemental affirmation of{**71 Misc 3d at 789} tenant's counsel ¶¶ 17, 21). Tenant argues that the Chief Administrative Judge's administrative orders support its reading that the Executive Orders imposed a pleading requirement upon landlords (id. ¶¶ 22-24).

Tenant additionally argues that, because the Executive Orders "bar[ ] [landlord] from relying upon the law" that existed pre-pandemic, "the facts as alleged in this summary proceeding do not fit within any currently cognizable legal theory," and so the petition must be dismissed for failure to state a cause of action pursuant to CPLR 3211 (a) (7) (id. ¶ 13).

Landlord argues that placing the burden upon a landlord to ascertain whether a tenant is experiencing financial hardship due to the COVID-19 pandemic is "both onerous and unrealistic," and "places the landlord in the impossible position of trying to solicit financial information from its tenant during an adversarial contractual point" (supplemental affirmation of landlord's counsel in opp ¶¶ 31-32). While insisting that the Executive Orders do not apply to holdover proceedings, landlord maintains that a commercial tenant should raise its financial hardship due to the COVID-19 pandemic either as a defense based upon documentary evidence pursuant to CPLR 3211 (a) (1), or as an affirmative defense pursuant to CPLR 3211 (b), which would require a tenant to answer the holdover petition (see supplemental affirmation of landlord's counsel in opp ¶¶ 48-49). Finally, landlord asserts, "every Court directive and/or Administrative Order requiring commercial landlords to address financial hardship as a pleading requirement has since been rescinded or explicitly superseded—thereby establishing that, going forward, commercial tenants will have to raise the same as a defense" (id. ¶ 34).

[1] In this court's view, nothing in the Executive Orders explicitly sets forth a pleading requirement, [*5]and this court declines to infer a pleading requirement from the language of the Executive Orders (see Gould v Pollack, 68 Misc 2d 670 [Civ Ct, NY County 1971] [holdover petition was not required to allege compliance with President's Freeze Order], affd 71 Misc 2d 344 [App Term, 1st Dept 1972]). A pleading requirement would place the burden of proof upon a landlord; a defense would place the burden of proof upon a tenant. At trial, "[t]he petitioner has the burden of proof with respect to allegations in the petition, and the respondent has the burden of proof with respect to affirmative defenses" (Alan Scherer & Fern Fisher, Residential Landlord Tenant Law in New York § 14:7 [2020]; {**71 Misc 3d at 790}see also GMAC Mtge., LLC v Coombs, 191 AD3d 37, 39-40 [2d Dept 2020] ["where a defendant seeks to inject into the litigation 'matters that are not the plaintiff's burden to prove as part of the cause of action,' those matters must be affirmatively pleaded as defenses" (emendation omitted)]). Imposing a pleading requirement effectively adds an allegation that must be proved at trial.

However, as landlord points out, the relevant information about a tenant's finances is exclusively within the tenant's knowledge, unless that tenant shares this information with its landlord. Thus, being able to prove that a tenant is not suffering financial hardship due to the COVID-19 pandemic would likely require the landlord to conduct discovery of the tenant's finances. However, a party is only entitled to discovery in a summary proceeding upon a showing of ample need (see New York Univ. v Farkas, 121 Misc 2d 643 [Civ Ct, NY County 1983]).

This court agrees with landlord that the moratorium on evictions in Executive Order 202.28 for residential tenants was codified into the Tenant Safe Harbor Act (see L 2020, ch 127); Executive Order 202.48 explicitly referred to the Tenant Safe Harbor Act when it indicated that the moratorium was continued only as to commercial tenants (see 9 NYCRR 8.202.48). The Tenant Safe Harbor Act codified financial hardship as a defense, not as a pleading requirement (see L 2020, ch 127, § 2 [2] [a]). Additionally, Executive Order (A. Cuomo) No. 202.66 (9 NYCRR 8.202.66) "created a new defense in holdover eviction proceedings if the tenant 'suffered a financial hardship during the COVID-19 covered period' " (Matter of Cabrera v Humphrey, 192 AD3d 227, 232 [3d Dept 2021] [emphasis added]).

This court sees little reason to interpret the Executive Orders in such a way as to create an entirely different framework for commercial tenants than from what the legislature and Governor envisioned for residential tenants (see Matter of Central Hudson Gas & Elec. Corp. v Public Serv. Commn. of State of N.Y., 108 AD2d 266, 271 [3d Dept 1985] ["uniformity in interpretation is desirable"]). Thus, this court declines to infer a pleading requirement from the language of the Executive Orders.

Tenant's reliance upon the Chief Administrative Judge's administrative orders to support its contention that the Executive Orders themselves must be read to impose a pleading{**71 Misc 3d at 791} requirement is unpersuasive. If the Executive Orders had expressly imposed a pleading requirement, it would have been unnecessary for the administrative orders to reiterate such a requirement. In any event, Administrative Order AO/127/20 did not impose a pleading requirement; it required an affirmation or affidavit of compliance, and tenant acknowledges that Administrative Order AO/143/20 eliminated that requirement shortly thereafter. Thus, the administrative orders do not constitute persuasive authority as to the intent and interpretation of the Executive Orders.

Contrary to tenant's assertion, the petition states a cause of action for a holdover proceeding against tenant (see Matter of Kern v Guller, 40 AD3d 1231, 1232 [3d Dept [*6]2007] ["To maintain a summary holdover proceeding, the landlord must allege and prove that the tenant remains in possession after the expiration of his or her term"]).

Accordingly, the branch of tenant's motion to dismiss the petition pursuant to CPLR 3211 (a) (7), on the basis that the petition fails to plead that tenant was not suffering a financial hardship due to the COVID-19 pandemic, is denied.

B. Whether a Violation of the Moratorium on Eviction of Commercial Tenants in Executive Orders 202.28, 202.48 and 202.57 Falls under CPLR 3211 (a) (3)

"In general, a party's competence to commence an action is presumed" (Vasilatos v Dzamba, 148 AD3d 1275, 1276 [3d Dept 2017]). The party seeking to dismiss the pleading pursuant to CPLR 3211 (a) (3) bears the burden of demonstrating that petitioner lacked capacity (id.; see also Brunner v Estate of Lax, 137 AD3d 553, 553 [1st Dept 2016]).

[2] Tenant argues that Executive Orders 202.28 and 202.48 "remove[d] Petitioner's legal capacity to initiate this proceeding" (affirmation of tenant's counsel ¶ 8). This court disagrees.

" 'Capacity' . . . concerns a litigant's power to appear and bring its grievance before the court. . . . Capacity, or the lack thereof, sometimes depends purely upon a litigant's status. A natural person's status as an infant, an adjudicated incompetent or, formerly, a felony prisoner, for example, could disqualify that individual from seeking relief in court. Additionally, the capacity question has often arisen in connection with controversies involving trustees.

"Another category of capacity problems . . . arises {**71 Misc 3d at 792}in the context of suits brought by artificial entities. Business corporations, for example, are creatures of statute and, as such, require statutory authority to sue and be sued" (Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155 [1994] [citations omitted]).

"Capacity, unlike standing, does not concern the injury a party suffered, but whether the legislature invested that party with authority to seek relief in court. As such, capacity is a question of legislative intent and substantive state law" (Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 384 [2017]).

The moratorium on the eviction of commercial tenants in Executive Orders 202.28 and 202.48 (as continued by Executive Order 202.57) was not worded in such a way as to remove the power of landlords to bring suit in court. The moratorium was not expressly directed at landlords. Rather, the focus is on the commercial tenant that is facing financial hardship due to the COVID-19 pandemic.

Accordingly, the branch of tenant's motion to dismiss the petition pursuant to CPLR 3211 (a) (3), on the basis that landlord lacks capacity to bring a summary holdover proceeding against tenant, which allegedly suffers financial hardship due to the COVID-19 pandemic, is denied.

C. Whether a Violation of the Executive Orders Falls under CPLR 3211 (a) (2)

Tenant apparently argues that the Executive Orders deprived the Civil Court of subject matter jurisdiction to adjudicate summary proceedings for the eviction of commercial tenants for nonpayment of rent (see supplemental affirmation of tenant's counsel in support ¶¶ 2-11). According to tenant, the Governor "has suspended those portions of RPAPL article 7 which [*7]govern the commencement of all summary eviction proceedings predicated on the non-payment of rent" (id. ¶ 6).

" 'Subject matter jurisdiction concerns a court's competence to entertain a particular kind of application. A court's power to entertain a particular kind of application is conferred by constitution or statute alone.'

"By virtue of NY Constitution, article VI, § 15, CCA 204, and RPAPL 701 and 711, the Civil Court ha[s] subject matter jurisdiction over this summary proceeding" (Efaplomatidis v Aires Mexicanos Rest. {**71 Misc 3d at 793}Corp., 58 Misc 3d 153[A], 2018 NY Slip Op 50155[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [citations omitted]).

[3] Here, nothing in the Executive Orders refers to the court's jurisdiction. These executive orders are not worded in such a way as to state clearly that courts may not hear such cases. Interpreting the Executive Orders as removing these cases from the Civil Court's subject matter jurisdiction could raise a significant constitutional issue. In People v Correa (15 NY3d 213 [2010]), the Court of Appeals stated that "a significant constitutional issue would be presented because we have made clear in other contexts that '[t]he Legislature cannot by statute deprive [the court] of one particle of its jurisdiction, derived from the Constitution (Art. VI), although it may grant concurrent jurisdiction to some other court' " (id. at 229). Article VI, § 15 (b) of the Constitution of the State of New York grants the Civil Court subject matter jurisdiction to hear summary proceedings.^[FN2]

"[A] statute is to be construed so as to avoid grave doubts concerning its constitutionality" (Fantis Foods v Standard Importing Co., 49 NY2d 317, 327 [1980]).^[FN3] As discussed below, a violation of the moratorium on evictions of a commercial tenant in the Executive Orders can be classified and understood in a way that does not implicate the subject matter jurisdiction of the Civil Court to hear summary proceedings under article 7 of the RPAPL. Thus, this court rejects tenant's argument that the moratorium on evictions in Executive Orders 202.28 and 202.48 (as continued by Executive Order 202.57) deprived the Civil Court of subject matter jurisdiction to hear summary eviction proceedings involving commercial tenants who suffered financial hardship due to the COVID-19 pandemic.{**71 Misc 3d at 794}

However, that is not to say that the defense of financial hardship of a commercial tenant cannot be brought under CPLR 3211 (a) (2). "The motion to dismiss for lack of subject matter [jurisdiction] . . . has also been used to raise objections that are not jurisdictional at all, but rather addressed to the court's discretion to decline jurisdiction" (7 New York Civil Practice: CPLR ¶ [*8]3211.09 [2020]). One such objection is the assertion of sovereign immunity by a government or its agencies (id.).

In this court's opinion, the moratorium on eviction of commercial tenants in Executive Orders 202.28 and 202.48 (as continued by Executive Order 202.57) best fits into the substantive framework of summary proceedings in article 7 of the RPAPL and the procedural framework of the CPLR as granting a commercial tenant a kind of temporary, qualified immunity from suit.^[FN4] Temporary, qualified immunity from suit is consistent with the prohibition of initiation of eviction proceedings contained in Executive Orders 202.28 and 202.48, and it is consistent with the notion that financial hardship due to the pandemic is a defense that belongs to the tenant. The immunity is temporary because it will presumably expire when the executive orders which created the moratorium presumably expire (absent further legislative and/or executive action). The immunity is qualified because it does not belong to all commercial tenants; it applies only to those commercial tenants who have suffered financial hardship due to the COVID-19 pandemic.

Thus, a violation of Executive Orders 202.28, 202.48 and 202.57 may be properly brought on a pre-answer motion to{**71 Misc 3d at 795} dismiss pursuant to CPLR 3211 (a) (2). Alternatively, the defense may be brought under CPLR 3211 (a) (1) or as an affirmative defense raised in an answer. Procedurally speaking, a defense under CPLR 3211 (a) (1) is limited to documentary evidence only; a defense under CPLR 3211 (a) (2) is not. A defense under CPLR 3211 (a) (2) rather than an affirmative defense would allow the defense to be raised on a pre-answer motion to dismiss.

Because tenant's motion to dismiss sought dismissal pursuant to CPLR 3211 (a) (2), among other grounds, the pre-answer motion to dismiss was properly brought, and thus this court may reach the merits of the motion.

A.

"In contrast to the many established principles for interpreting legislation, there appear to be few such principles to apply in interpreting executive orders" (City & County of San Francisco v Trump, 897 F3d 1225, 1238 [9th Cir 2018] [collecting cases]). However, the parties agree that the court should follow the rules of statutory construction when interpreting executive orders (see supplemental affirmation of landlord's counsel in opp ¶ 8; see supplemental affirmation of tenant's counsel in support ¶ 39 ["there is no need for the Court to look beyond [*9]the words of the Executive Orders"]).^[FN5]

"As is true of interpretation of statutes, the interpretation of an Executive Order begins with its text," which "must be construed consistently with the Order's 'object and policy' " (Bassidji v Goe, 413 F3d 928, 934 [9th Cir 2005] [citations omitted]; see also Scheja v Sosa, 4 AD3d 410, 411-412 [2d Dept 2004] [adopting plain meaning of Executive Order No. 113]).

"This Court's well-established rules of statutory construction direct that the analysis begins with the language of the statute. This is because the primary consideration is to ascertain the legislature's intent, of which the text itself is generally the best evidence. A court should construe unambiguous{**71 Misc 3d at 796} language to give effect to its plain meaning. Further, a statute must be construed as a whole and . . . its various sections must be considered together and with reference to each other. The circumstances surrounding the statute's passage are a useful aid in understanding its meaning" (Colon v Martin, 35 NY3d 75, 78 [2020] [internal quotation marks, citations, and emendations omitted]).

To be precise, Executive Order 202.57 was the executive order in effect when this holdover proceeding was commenced. However, because Executive Order 202.57 continued the moratorium on evictions issued under previous executive orders, the relevant provisions to be interpreted are contained in Executive Orders 202.28 and 202.48.

Executive Order 202.28 states, in relevant part,

"There shall be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020" (9 NYCRR 8.202.28).

Executive Order 202.48 states, in relevant part,

"The directive contained in Executive Order 202.28, as extended, that prohibited initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, is continued only insofar as it applies to a commercial tenant or [*10]commercial mortgagor, as it has been superseded by legislation for a residential tenant, and residential mortgagor, in Chapters 112, 126, and 127 of the Laws of 2020" (9 NYCRR 8.202.48).

Executive Orders 202.28 and 202.48 are not models of precision. Generally speaking, Executive Law § 29-a grants the Governor power to issue executive orders and directives to cope with a disaster emergency, and such directives "may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended,{**71 Misc 3d at 797} and may include other terms and conditions" (Executive Law § 29-a [2] [d]). However, Executive Law § 29-a (2) (c) also provides, "any such suspension order shall specify the statute, local law, ordinance, order, rule or regulation or part thereof to be suspended and the terms and conditions of the suspension." Executive Orders 202.28 and 202.48 do not specifically reference the statutory sections of the RPAPL suspended, modified, or limited by the moratorium on commercial evictions. This court is now in the difficult position of trying to determine whether such specificity can be gleaned from the existing language of Executive Orders 202.28 and 202.48, given the parties' arguments and the rules of statutory construction.

Tenant appears to argue that Executive Orders 202.28 and 202.48 apply here because "[t]his is a holdover proceeding based upon the Respondent's failure to pay rent" (affirmation of tenant's counsel in support ¶ 3). In opposition, landlord argues that the moratorium on evictions of commercial tenants in Executive Order 202.28 applies only to nonpayment proceedings and is inapplicable to commercial holdover proceedings, which is a distinct and mutually exclusive remedy from a nonpayment proceeding (affirmation of landlord's counsel in opp ¶¶ 3, 7). Landlord maintains that the termination of the lease was not "obviated" by the Executive Orders, and that nothing in the Executive Orders "relieved Respondent of its obligation to pay rent under the Lease," both of which would violate the Contracts Clause of the United States Constitution (US Const, art I, § 10, cl 1) and the New York Constitution (id. ¶¶ 16, 21).

In reply, tenant rejects the nonpayment/holdover proceeding distinction as irrelevant (reply affirmation of tenant's counsel in support ¶ 2). Tenant asserts that this holdover proceeding falls within the ambit and intent of the Executive Orders because it was "predicated upon Respondent's nonpayment of rent" (id. ¶ 3). Tenant contends that the Executive Orders did not limit their directives to nonpayment eviction proceedings (reply affirmation of tenant's counsel in support ¶¶ 2-5).

In its supplemental papers, landlord relies on the evolution and circumstances surrounding the issuance of Executive Order 202.28 to support its interpretation that the moratorium on evictions of commercial tenants in the Executive Orders was limited to nonpayment proceedings. Because Executive Order 202.8 prohibited all evictions, landlord essentially contends that the words "no initiation of a proceeding . . . for {**71 Misc 3d at 798}nonpayment of rent" in Executive Order 202.28 should be read as narrowing the scope of the moratorium on evictions to nonpayment proceedings, citing Anthi New Neocronon Corp. v Coalition of Landlords, Homeowners & Merchants, Inc. (68 Misc 3d 813, 813-816 [Suffolk Dist Ct 2020]) (supplemental affirmation of landlord's counsel in opp ¶¶ 16-18). Landlord asserts that "[i]f the Governor had intended for the prohibition on evictions contained in Executive Order 202.28 to extend to both nonpayment and holdover proceedings, he would not have limited the applicability of Executive Order 202.48 to commercial tenants" (id. ¶ 24). Landlord also contends that the Tenant Safe Harbor Act (L 2020, ch 127), as originally enacted, does not apply to holdover proceedings (id. ¶ 21).

It is undisputed that "proceeding or enforcement of . . . an eviction . . . for nonpayment of rent" applies to nonpayment proceedings, pursuant to RPAPL 711 (2). As landlord points out, the central issue is whether the words, "no initiation of a proceeding or enforcement of . . . an eviction . . . for nonpayment of rent," in Executive Orders 202.28 and 202.48 also include conditional limitation holdover proceedings, pursuant to RPAPL 711 (1), where the lease was terminated for nonpayment of rent. Landlord concedes that the words of the executive orders are ambiguous and open to interpretation (supplemental affirmation of landlord's counsel in opp ¶ 11).

On the one hand, landlord apparently reads "proceeding or enforcement of . . . an eviction" to refer to summary proceedings under article 7 of the RPAPL, and infers "nonpayment of rent" necessarily limits those summary proceedings to nonpayment proceedings. In essence, under landlord's interpretation, the words "nonpayment of rent" modify the word "proceeding."

On the other hand, when Executive Order 202.28 is written as if it were in the format of a statute, a different interpretation can be more clearly seen:

"There shall be no initiation of a proceeding or enforcement of either

"an eviction of any residential or commercial tenant, for nonpayment of rent

"or

"a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage,

"owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty{**71 Misc 3d at 799} days beginning on June 20, 2020" (9 NYCRR 8.202.28 [emphasis and reformatting added]).

"Under the last antecedent rule of statutory construction, relative and qualifying words or clauses in a statute are to be applied to the words or phrases immediately preceding, and are not to be construed as extending to others more remote . . . unless some compelling reason appears why it should not be so construed" (Colon v Martin, 35 NY3d 75, 78-79 [2020] [emendations omitted]).

[4] Thus, as this court construes Executive Order 202.28, "nonpayment of rent" must be read to modify the word "eviction," not the word "proceeding."

Under this interpretation, the Executive Orders would apply to holdover proceedings if the eviction was based on the nonpayment of rent, which is the case here. The plain and ordinary meaning of the word "eviction" includes holdover proceedings, because those proceedings can seek, among other things, the eviction of a tenant who remains in possession [*11]after expiration or termination of the lease (see RPAPL 701 [1]; 711 [1]).

This interpretation of Executive Order 202.28 furthers its purpose. "The moratorium's references to 'nonpayment' of rent or mortgage clearly establishes that its purpose was to protect individuals experiencing financial hardship as a result of the COVID-19 pandemic" (Shack Collective Inc. v Dekalb Mkt. Hall, LLC, 69 Misc 3d 1202[A], 2020 NY Slip Op 51156[U], *4 [Civ Ct, Kings County 2020]). Contrary to landlord's interpretation, use of the word "nonpayment" was not intended to reference a particular type of statutory proceeding, but rather was intended to refer to the basis of the eviction or foreclosure, i.e., "nonpayment of rent" and "nonpayment of mortgage."

This court recognizes that the nonpayment/holdover proceeding distinction has appeal, because the distinction is well understood, and two trial courts have adopted that distinction in interpreting the scope of the moratorium on commercial evictions. As landlord points out, the court in Anthi New Neocronon Corp. ruled, "Executive Order No. 202.28 succinctly narrows the purview of the stay to 'nonpayment' proceedings only" (68 Misc 3d at 815-816). Similarly, another court recently stated, "summary eviction holdover proceedings are not subject to the moratorium on evictions" (Smart Coffee, Inc. v Sprauer, 71 Misc 3d 193, 208 [Civ Ct, Queens County 2021]).{**71 Misc 3d at 800}

As landlord correctly points out, a key difference between the holdover proceeding and the nonpayment proceeding is that, in a holdover proceeding, the lease has expired or has been terminated prior to commencement of the holdover proceeding (see Harris v Timecraft Indus., 132 Misc 2d 386, 389 [Civ Ct, NY County 1986]). By contrast, a lease has not been terminated when a nonpayment proceeding is commenced. "The petitioner's goal in a holdover is to secure vacant possession. In nonpayment proceedings, the same need is absent: What a petitioner seeks in a nonpayment proceeding is for the rent to be paid" (Acquisition Am. v Diaz, 20 Misc 3d 1127[A], 2008 NY Slip Op 51647[U], *3 [Civ Ct, NY County 2008]).

However, this distinction should be examined more closely where the holdover is based on a conditional limitation^[FN6] due to nonpayment of rent. The issues in a nonpayment proceeding [*12]would appear to overlap with the issues in a conditional limitation holdover proceeding involving nonpayment of rent. In both kinds of proceedings, the court must determine whether the tenant defaulted in the payment of rent (cf. Grand Liberte Coop. v Bilhaud, 126 Misc 2d 961, 964 [App Term, 1st Dept 1984] ["since we perceive no factual issue in the papers as to tenant's default (payment is not alleged, nor is any other defense which might excuse nonpayment), we are required to grant landlord a possessory judgment"]). Anthi New Neocronon Corp. and Smart Coffee, Inc., which ruled in favor of the nonpayment/holdover proceeding distinction, are both factually{**71 Misc 3d at 801} distinguishable. In Anthi New Neocronon Corp., the term of the leases had expired (Anthi New Neocronon Corp., 68 Misc 3d at 818 ["it is undisputed that both leases terminated by their own terms"]). Smart Coffee, Inc. was an illegal lockout proceeding, and the court considered the issue of whether the tenant could be restored to the premises after finding that the tenant had been locked out illegally. However, the tenant's lease expired while the illegal lockout proceeding was pending (Smart Coffee, Inc., 71 Misc 3d at 208). Thus, neither Anthi New Neocronon Corp. nor Smart Coffee, Inc. involved leases terminated pursuant to a conditional limitation for nonpayment of rent, and thus those courts did not have to squarely address the issues presented here.

Had the Governor intended to limit the moratorium on evictions solely to nonpayment proceedings, the Governor could have easily done so by reference to the particular subsections of RPAPL 711, as in the case of other statutes that were specifically referenced in Executive Order 202.28.

Assuming for the sake of argument that Executive Order 202.28 is ambiguous, as landlord acknowledged, "[w]here the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results" (H. Kauffman & Sons Saddlery Co. v Miller, 298 NY 38, 44 [1948]; see also Long v State of New York, 7 NY3d 269, 273 [2006] ["Although statutes will ordinarily be accorded their plain meaning, it is well settled that courts should construe them to avoid objectionable, unreasonable or absurd consequences"]).

If the moratorium on evictions did not also include conditional limitation holdover proceedings based on nonpayment of rent, this court is concerned that there would be a gaping loophole in Executive Order 202.28's protections. A landlord which is barred from commencing a nonpayment proceeding against a commercial tenant suffering financial hardship due to the COVID-19 pandemic would easily get around the moratorium by invoking a conditional limitation contained in the lease due to nonpayment of rent, thereby transforming a barred nonpayment proceeding into a permissible holdover proceeding. This is not beyond the realm of imagination—indeed, practitioners have already explored alternative avenues to work around the{**71 Misc 3d at 802} moratorium on summary proceedings.^[FN7] Under landlord's interpretation, the [*13]moratorium to prevent evictions of affected tenants during the COVID-19 pandemic would create a perverse incentive for landlords to terminate the leases of the very tenants whom the moratorium was intended to protect. The Governor could not have intended that absurd result.

To the contrary, Executive Order 202.28 should be construed broadly to include conditional limitation holdover proceedings based on nonpayment of rent. First, Executive Order 202.28 was remedial in nature (see Fumarelli v Marsam Dev., 92 NY2d 298, 306 [1998] [a remedial statute "provides a remedy where the common law either provides no remedy or provides an imperfect or ineffective remedy"]).^[FN8] "Remedial statutes, of course, should be construed broadly so as to effectuate their purpose" (Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 676 [1997]; see also Matter of Machcinski [Ford Motor Co.—Corsi], 277 App Div 634, 639 [3d Dept 1951] [unemployment compensation statute was "a remedial statute, a humanitarian statute, and should be construed accordingly"]).

Landlord's argument that the availability of a Yellowstone injunction (see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]) would forestall any increase in the terminations of leases due to nonpayment of rent is unpersuasive. Generally speaking, some executive orders issued in response to the COVID-19 pandemic attempted to curb the{**71 Misc 3d at 803} spread of COVID-19 by limiting the number of people gathering in public spaces,^[FN9] which would also allow for adequate social distancing. To insist that a tenant claiming financial hardship due to the COVID-19 pandemic should seek a Yellowstone injunction would subject that tenant to more litigation, during a time when the State is trying to decrease in-person foot traffic in the courthouse, among other public spaces.^[FN10] This is unreasonable during the COVID-19 pandemic. [*14]

Landlord's reliance upon the Tenant Safe Harbor Act as evidence of the Governor's intent that Executive Orders 202.28 and 202.48 did not apply to holdover proceedings involving commercial tenants is misplaced. That statute, "which was enacted in June 2020, is limited to summary eviction proceedings based on nonpayment and does not apply to holdover proceedings" (Matter of Cabrera v Humphrey, 192 AD3d 227, 232 [3d Dept 2021]). However, in Matter of Cabrera, the Appellate Division, Third Department went on to note that the Governor issued Executive Order (A. Cuomo) No. 202.66 (9 NYCRR 8.202.66), "[a]pparently to address that disparate treatment of eviction proceedings and to provide greater relief to tenants" (id.). "[W]hen the Governor signed that order on September 29, 2020, he created a new defense in holdover eviction proceedings if the tenant 'suffered a financial hardship during the COVID-19 covered period' " (id. [emphasis added]). Thus, the issuance of Executive Order 202.66 belies any contention that the Governor intended the moratorium on evictions to apply only to nonpayment proceedings, at least with respect to residential tenants.

As discussed above, under the rules of statutory construction, the words of Executive Orders 202.28 and 202.48's moratorium on evictions of commercial tenants facing financial{**71 Misc 3d at 804} hardship due to the COVID-19 pandemic should be interpreted to include holdover proceedings involving nonpayment of rent. Alternatively, assuming the Executive Orders were ambiguous, the Executive Orders must be interpreted broadly to include conditional limitation holdover proceedings involving nonpayment of rent.^[FN11] Under either scenario, the moratorium on evictions of commercial tenants in Executive Orders 202.28 and 202.48 (as continued by Executive Order 202.57) applies in this case. Here, according to the "Five (5) Day Notice to Tenant," the lease was to terminate on July 15, 2020, well after Executive Order 202.28 was issued on May 7, 2020, and after Executive Order 202.48 was issued on July 6, 2020.

This court does not reach landlord's remaining arguments. In passing, landlord appears to suggest that the Executive Orders violated the Contracts Clause of the United States Constitution (US Const, art I, § 10, cl 1) and article I, § 6 of the New York Constitution (affirmation of landlord's counsel in opp ¶¶ 6, 20). However, counsel's affirmation neither analyzes nor discusses whether the moratorium on evictions in Executive Orders 202.28, 202.48 and 202.57 meets the two-step test for a violation of the Contracts Clause (see Sveen v Melin, 584 US —, —, 138 S Ct 1815, 1821-1822 [2018]; see also American Economy Ins. Co. v State of New York, 30 NY3d 136, 150 [2017]). Neither does the counsel's affirmation discuss the test of whether the State deprived a party to a contract of an essential contract attribute without due process of law, in violation of article I, § 6 of the New York Constitution (see Patterson v Carey, 41 NY2d 714, 720-721 [1977] ["Where a statute is challenged on nonprocedural grounds as violative of due process, the test is whether there is 'some fair, just and reasonable connection' between the statute and 'the promotion of the health, comfort, safety and welfare of society' "]).

Having determined that Executive Order 202.57 applies here, and that financial hardship due to [*15]the COVID-19 pandemic is a defense that belongs to tenant, the court will{**71 Misc 3d at 805} proceed to determine whether tenant met the burden on its motion to dismiss of demonstrating financial hardship.

B.

According to tenant's president, Albert Nigri, tenant is "a wholesaler of ladieswear that occupies commercial office and showroom space" at the premises, which

"has had difficulty paying rent due to the Covid 19 pandemic for reasons which include but are not limited to the shutdown of retail businesses that are [tenant]'s customers and retail businesses that are the customers of [tenant]'s wholesale customers; the refusal of [tenant]'s customers, due to Covid fears, to send their buyers to NYC to shop in its showroom; the Executive Orders reducing the [tenants'] workforce and the ability of others to access [tenant]'s space" (Nigri aff ¶ 2).

This affidavit is the only evidence of tenant's financial hardship due to the COVID-19 pandemic. Nevertheless, tenant contends that "[g]iven the severe impact of the Covid-19 pandemic and the Governor[']s Executive Orders on the ability of non-essential businesses to operate," business entities like tenant's—that were deemed nonessential—"must be considered to be 'per se' facing financial hardships from the Covid-19 pandemic" (supplemental affirmation of tenant's counsel in support ¶ 34).

Landlord argues that the court should evaluate each claim of financial hardship on a case-by-case basis, rather than adopting a categorial approach:

"Determining that a commercial tenant is facing financial hardship simply because it belongs to a certain industry or category of tenants would lead to the absurd result of protecting a tenant that has not been financially impacted by the pandemic. For example, there are many restaurants that have increased their customer capacity through outdoor dining and, as a result, their profits have increased despite the pandemic. Also consider the fact that some commercial tenants have significant cash reserves and assets to sustain them during the pandemic even though there have been months where profits have decreased.

"Treating these two types of tenants the same as a tenant that does not have cash reserves and has experienced a loss every month since the onset of{**71 Misc 3d at 806} the pandemic merely because they fall within a specific industry is both illogical and inequitable. Indeed, it would have the unintended consequence of depriving a landlord of the ability to enforce the monetary terms of its commercial lease against a tenant who has the financial capability to pay the agreed upon rent" (supplemental affirmation of landlord's counsel in opp ¶¶ 43-44).

The plain and ordinary meaning of "hardship" is "suffering" or "privation" (Merriam-Webster Online Dictionary, hardship [https://www.merriam-webster.com/dictionary/hardship] [accessed Mar. 2, 2021]; see also Black's Law Dictionary [11th ed 2019], hardship [defining hardship as "(p)rivation; suffering or adversity"]). As tenant points out, it cannot be seriously disputed that the executive orders—requiring commercial businesses to reduce their occupancy limits or to cease or limit operations—impacted the ability of those businesses to generate revenue. But financial impact is not synonymous with financial hardship. As landlord points out, a tenant might have access to cash reserves or assets to pay the rent, even in the face of little or no revenue from the [*16]business itself.^[FN12]

[5] Thus, this court agrees with landlord that the defense of financial hardship requires a particularized showing of a tenant's own financial circumstances.^[FN13] This court rejects tenant's contention that all nonessential businesses suffered{**71 Misc 3d at 807} financial hardship per se.^[FN14] A particularized showing of financial hardship furthers the purpose of the Executive Orders to protect, at least temporarily, a particular class of commercial tenants "experiencing financial hardship as a result of the COVID-19 pandemic" (Shack Collective Inc., 69 Misc 3d 1202[A], 2020 NY Slip Op 51156[U], *4). This interpretation also balances the countervailing policy concern that landlords should have recourse when tenants who are financially able to pay their rent do not honor their contractual obligation to pay.

Here, the affidavit from tenant's president was insufficient to meet tenant's burden of establishing that it suffered financial hardship due to the COVID-19 pandemic (see Bridgecity Capital QOB LLC v 1717 E. 8 ST LLC, 2021 NY Slip Op 30406[U], *5 [Sup Ct, Kings County 2021] [denying cross motion to dismiss on Executive Order 202.28 grounds where the cross-movants' affidavit "merely attests that the COVID-19 pandemic has 'severely impacted my income as tenants . . . have ceased making rental payments' "]). For example, tenant did not submit any financial documents such as balance sheets, profits and loss statements, or any documentation that tenant received government assistance such as the Small Business Administration's Paycheck Protection Program.

Because tenant did not establish that it was suffering financial hardship due to the COVID-19 pandemic, tenant therefore failed to establish that landlord commenced this proceeding in violation of Executive Order 202.57. Therefore,{**71 Misc 3d at 808} the branch of tenant's motion to dismiss pursuant to CPLR 3211 (a) (2) is denied.^[FN15]

Tenant is directed to serve an answer to the petition within 10 days of service of a copy of this order with notice of entry (CPLR 3211 [f]).^[FN16] The parties are directed to appear virtually via Microsoft Teams in Part 52 on March 25, 2021, at 9:30 a.m. for all purposes.^[FN17]

Tenant argues that dismissal is the appropriate relief for violation of the moratorium on evictions of commercial tenants due to nonpayment of rent in Executive Order 202.28. Tenant reasons that the moratorium was akin to a stay on the commencement of such proceedings, and actions commenced in violation of a stay should be dismissed, analogizing to a bankruptcy stay (see supplemental affirmation of tenant's counsel in support ¶¶ 25-27). Tenant contends that the court does not have the power to stay its own proceedings because the Civil Court lacks the power to issue injunctive relief (id. ¶¶ 28-29).

Landlord appears to acknowledge that the case could be dismissed without prejudice if the tenant established that it experienced financial hardship due to the COVID-19 pandemic (supplemental affirmation of landlord's counsel in opp ¶ 50). Alternatively, landlord argues that if it demonstrates its prima facie case at trial, and the tenant establishes the affirmative defense of financial hardship, then the court should grant{**71 Misc 3d at 809} landlord a judgment of possession, and the warrant of eviction would be stayed until the Executive Orders are lifted or expire (id. ¶ 52).

Generally speaking, the parties should be in the same position as if the Executive Orders had been followed. However, in light of the court's determination denying tenant's motion to dismiss, this court need not reach the issue of the appropriate relief to be granted for a violation of Executive Orders 202.28 and 202.48, as continued by Executive Order 202.57. Neither does this court address the question of whether a stay (rather than a dismissal) might be an appropriate relief for enforcement of a pending eviction proceeding in violation of the Executive Orders.

Upon the foregoing cited papers, it is hereby ordered the motion to dismiss by respondent Mega Wear Inc. (mot seq No. 001) is denied.

"The court of city-wide civil jurisdiction of the city of New York shall have jurisdiction . . . over summary proceedings to recover possession of real property and to remove tenants therefrom and over such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law" (see also Chan v Adossa, 195 Misc 2d 590, 594 [App Term, 2d Dept 2003] ["Jurisdiction over summary proceedings is conferred upon the Civil Court by the State Constitution (NY Const, art VI, § 15 [b]) and by the State Legislature, acting pursuant to the mandate of this constitutional provision"]).

Indeed, the moratorium on evictions of commercial tenants suffering financial hardship due to the COVID-19 pandemic has also been viewed as a stay on the commencement of those proceedings (see Anthi New Neocronon Corp. v Coalition of Landlords, Homeowners & Merchants, Inc., 68 Misc 3d 813, 815-816 [Suffolk Dist Ct 2020]). However, a stay on the commencement of proceedings impacts a litigant's ability to commence the proceeding within the applicable statute of limitations period. Although Executive Order 202.8 imposed a toll on "any specific time limit for the commencement . . . of any legal action . . . or proceeding" (see 9 NYCRR 8.202.8), Executive Order (A. Cuomo) No. 202.67 extended that toll only until November 3, 2020 (see 9 NYCRR 8.202.67).

Perhaps, ironing out how the moratorium on evictions of a commercial tenant might best operate within the procedural framework of the CPLR and the substantive framework of article 7 of the RPAPL might require further action from the legislature and/or Governor.