Civil Court of the City of New York, New York County, July 14, 2022

SDK Heiberger (Steven B. Sperber of counsel) for petitioner.

Thomas John Hillgardner for Markyus O'Neill, respondent.

Procedural History and Background

This is a licensee holdover proceeding brought after the death of the rent-stabilized tenant of record. The last renewal lease expired on December 31, 2021. (NY St Cts Elec Filing [NYSCEF] Doc No. 32, exhibit B to petitioner's mot seq 2.) Respondent applied for the COVID-19 Emergency Rental Assistance [*2]Program of 2021 (ERAP) on March 22, 2022, and petitioner has moved to vacate the stay.^[FN*] Respondent argues that the stay should remain in effect because of the plain language of the statute, and because none of petitioner's cited cases which grant a motion to vacate an ERAP stay in licensee holdover proceedings involve a factual scenario wherein a licensee raises a colorable claim of succession. (NYSCEF Doc No. 41, respondent's mem of law at 2.) Respondent's attorney narrows the issue for consideration before the court: "The only issue before this Court on this motion is: in a licensee holdover proceeding involving a rent stabilized housing accommodation, whether a respondent articulating a colorable claim of succession rights is entitled to the automatic stay provided for by [ERAP]." (Id.) For the following reasons, the court holds that the ERAP stay should be vacated, and that the parties should proceed with the litigation in the normal course.

Discussion

To be eligible for ERAP funds an applicant must be "a tenant or occupant obligated to pay rent." (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 5 [1] [a] [i].) Definitions in the original ERAP statute, relevant here, remained unchanged when the statute was amended by Laws of 2021, chapter 417. "Occupant" has the same meaning as under Real Property Law § 235-f. (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 2 [7].) Real Property Law § 235-f (1) (b) defines "[o]ccupant" as "a person, other than a tenant or a member of a tenant's immediate family,{**76 Misc 3d at 461} occupying a premises with the consent of the tenant or tenants." "Rent" is as defined under Real Property Actions and Proceedings Law § 702. (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 2 [9].) RPAPL 702 (1) defines "rent" as "the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement."

Respondent's argument that petitioner's motion must be denied rests on the proposition that he is not a mere licensee; rather he is entitled to possession of the premises, and a rent-stabilized renewal lease, because he is an immediate family member of the deceased tenant of record. (Braschi v Stahl Assoc. Co., 74 NY2d 201 [1989].)

However, this claim has yet to be adjudicated, and, for now, respondent remains a licensee, whose license has expired with the death of the last leaseholder. Respondent has no obligation to pay rent as there is no lease between respondent and petitioner prior to a favorable determination by this court that he is entitled to be the rent paying tenant of record. "[A] successor in interest is not a tenant until he [or she] becomes a party to a lease or rental agreement." (Strand Hill Assoc. v Gassenbauer, 41 Misc 3d 53, 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also East Harlem Pilot Block Bldg. IV HDFC Inc. v Diaz, 46 Misc 3d 150[A], 2015 NY Slip Op 50289[U] [App Term, 1st Dept 2015]; West 152nd Assoc., L.P. v Gassama, 65 Misc 3d 155[A], 2019 NY Slip Op 51926[U] [App Term, 1st Dept 2019].)

Respondent is not now a tenant or occupant obligated to pay rent pursuant to an agreement, written or oral, although he may be such a person once this litigation concludes. Payment of "rental arrears" for up to 12 months prior to respondent's application and potential [*3]additional three months of prospective arrears could, practically speaking, go some way towards settling this proceeding. Regardless, petitioner has stated that, at this juncture, it only desires possession, not "rent." (NYSCEF Doc No. 30, Ruhl aff ¶ 2.) In any case, notwithstanding respondent's succession claim, payment of approved ERAP funds would not preserve an existing tenancy or create one. Even if respondent prevails on his succession claim, he will not owe rent that came due prior to the filing of this proceeding. Payment of the ERAP funds for which respondent has applied will not result in the preservation or creation of a tenancy. What will preserve respondent's home and create a tenancy is a determination on the merits of his succession claim.{**76 Misc 3d at 462}

This court sees no reason why respondent should not continue with this litigation in the normal course, and obtain a determination on the merits.

Conclusion

Accordingly it is ordered that petitioner's motion to vacate the ERAP stay is granted.