Civil Court of the City of New York, Kings County, October 20, 2021

David Stern for petitioner.

Paul Leroux and George Gardner III for respondent.

The decision and order on this motion are as follows:

Veronica Gamboa Bitzarkis, the petitioner in this proceeding, commenced this proceeding against Lila Evans, the respondent in this proceeding, seeking possession of 122 Herkimer Street, apartment 2, Brooklyn, New York (the subject premises) on the basis of a termination of an unregulated tenancy. The court awarded petitioner a final judgment after trial and permitted the issuance of a warrant of eviction. Petitioner now moves to challenge a hardship declaration respondent filed pursuant to a recently-enacted statute.^[FN1]

Background

Respondent lives in the subject premises, which are one unit in a three-family house. Petitioner and petitioner's husband live in the other two units. Petitioner terminated respondent's tenancy by service of a predicate notice and commenced this proceeding by a [*2]notice of petition and petition filed on November 1, 2019, and noticed to be heard on November 12, 2019. After several adjournments, the matter proceeded to trial on October 7, 2020. By a decision dated October 14, 2020, the court awarded petitioner a final judgment of possession, permitted the issuance of the warrant of eviction forthwith, and stayed execution of the warrant through November 30, 2020. As of this writing, no eviction has occurred in this matter.{**73 Misc 3d at 829}

On December 28, 2020, the Governor signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (L 2020, ch 381) (CEEFPA). CEEFPA provided tenants with a mechanism by which they could inform the court of the effects of the COVID-19 pandemic on them called a "hardship declaration." Tenants filing a hardship declaration could state that they suffered a financial hardship and/or state that they sustained a medical condition that renders moving to be a health risk. A tenant's filing of a hardship declaration in a matter would stay an eviction through the date set by statute. Respondent filed a hardship declaration in this matter dated February 26, 2021, that stated that she suffered a financial hardship. That hardship declaration did not state anything about any medical condition affecting respondent.

During the pendency of the statutory stay, by an order dated August 12, 2021, the U.S. Supreme Court enjoined any enforcement of this provision of CEEFPA (Chrysafis v Marks, 594 US —, 141 S Ct 2482 [2021]), finding that CEEFPA denied landlords a hearing challenging a tenant's self-certification of a hardship and that such a denial violated due process. The legislature responded by enacting a new statute, signed into law on September 2, 2021 (L 2021, ch 417) (the New Statute), that provides, inter alia, that hardship declarations, both newly-filed and filed pursuant to CEEFPA, effectuate a stay of evictions for the declarants through January 15, 2022 (L 2021, ch 417, § 2, part C, § 1, subpart A, § 6 [a] [ii]), but also that landlords may move to challenge hardship declarations on a showing of good faith (L 2021, ch 417, § 2, part C, § 1, subpart A, § 10 [a]).

While respondent was pro se, respondent moved for a stay of eviction by an order to show cause dated September 14, 2021. Respondent then retained counsel and filed a new hardship declaration dated September 16, 2021, that alleged both that she had suffered a financial hardship and that she has a medical condition. Petitioner's affidavit in reply makes it clear that petitioner does not contest that respondent has a medical condition of the kind mentioned in CEEFPA and the New Statute.

Petitioner supports her instant cross motion challenging respondent's hardship declaration by averring that the pandemic could not have affected respondent's income because public assistance supported respondent both before and during the pandemic, which petitioner knows because she receives respondent's rent payments from the New York City Human Resources{**73 Misc 3d at 830} Administration (HRA).^[FN2] Respondent avers in opposition to petitioner's cross motion that she contracted COVID-19 earlier in 2021; that she survived only by being on a ventilator for 30 days, which damaged her lungs and cardiovascular system; that she then spent two weeks at a rehabilitation center to regain the ability to walk; that she tries to stay in the subject premises as much as possible because she is worried about contracting COVID-19 again; and that the pandemic increased the amounts that she had to spend to avoid contact with others [*3]and infection, like taking taxis instead of public transportation and buying masks, hand sanitizer, and cleansers. Petitioner avers in reply that she personally observes respondent coming and going to and from the subject premises; that she has observed respondent entertaining guests; and that she has smelled marijuana and heard loud music when respondent has entertained guests.

Discussion

The New Statute provides that a petitioner in a summary proceeding "may" make a motion challenging a tenant's hardship declaration "attesting a good faith belief that the respondent has not experienced a hardship . . . and the court shall grant a hearing to determine whether to find the respondent's hardship claim invalid." (L 2021, ch 417, § 2, part C, § 1, subpart A, § 10 [a] [emphasis added].) The legislation actually cites Chrysafis v Marks by name (L 2021, ch 417, § 2), thus demonstrating that the legislature could not have intended to provide landlords with a meaningless remedy. Accordingly, the legislature did not require landlords to, for example, show "knowledge" of a tenant's hardship status to obtain a hearing. Rather, landlords only have to show a "belief," albeit one that has a good faith basis. Petitioner's averment that both before and during the pandemic she receives respondent's rent from HRA is exactly the kind of discreet, specific, non-conclusory fact—and therefore made in good faith—upon which to form a "belief" that respondent has not suffered a pandemic-related hardship. As the statute provides that the court "shall" hold a hearing upon such a showing, then, petitioner proves an entitlement to a hearing as a prima facie matter. (See Sanchez-Tiben v Washington, 73 Misc 3d 721 [Civ Ct, Bronx County 2021].){**73 Misc 3d at 831}

Respondent argues that petitioner did not show the requisite "good faith" to obtain a hearing because petitioner only spoke to one means by which the pandemic could have affected respondent's inability to pay rent, i.e., a change in her income, and both CEEFPA and the New Statute identify six possible causes of an inability to pay rent that could comprise a hardship: a loss of income, an increase in expenses related to essential work, an increase in family responsibilities, an increase in out-of-pocket expenses, moving expenses, and a catchall. (L 2021, ch 417, § 2, part C, § 1, subpart A, § 1 [5] [a].) The New Statute does not require tenants to apprise landlords or the court which of the six causes of an inability to pay rent apply to them, which would otherwise give landlords notice of the showing they would need to make for a challenge to a hardship declaration. If the court adopted respondent's argument, then, and conditioned a hearing on a landlord's information about a spectrum of knowledge about a tenant so broad as to be burdensome to the landlord, the landlord would not receive process in a meaningful manner as required for the process to be due (Brock v Roadway Express, Inc., 481 US 252, 261 [1987]; Proctor v LeClaire, 846 F3d 597, 609 [2d Cir 2017]; Matter of LaCorte Elec. Constr. & Maintenance v County of Rensselaer, 80 NY2d 232, 237 [1992]; Matter of State of New York v Farnsworth, 75 AD3d 14, 20 [4th Dept 2010]), which would defeat the intent of the legislature to address the due process concerns of Chrysafis v Marks.

Contrary to respondent's interpretation of the New Statute, however, the plain language of the New Statute only requires a landlord to show good faith belief that a tenant has not experienced "a" hardship in order to gain a hearing. The use of the indefinite article "a" in a statute as such means "one or more." (Matter of Cook v Carmen S. Pariso, Inc., 287 AD2d 208, 213 [4th Dept 2001].) Accordingly, petitioner's averment about respondent's income suffices to show the kind of good faith belief that entitles petitioner to a hearing as per the New Statute.

Respondent next argues that the animus petitioner expresses toward respondent [*4]precludes any finding of petitioner's good faith belief that respondent has not experienced a hardship. Having tried this case between two occupants of a three-family house, the court is well aware of the animosity between the parties and noted the same in the trial decision. Taking respondent's argument to its logical conclusion, a hypothetical{**73 Misc 3d at 832} tenant who wished to defraud the court by falsely claiming a hardship would be insulated from scrutiny so long as the landlord and tenant had a hostile relationship with one another. Not only does respondent's argument fail to persuade for that reason, it would reward tenants who purposely foster an adversarial relationship with their landlords. Be that as it may, the fact-specific averments that petitioner made form the basis of the court's finding of a good faith belief, and respondent did not contest either that she has received public assistance both before and after the pandemic nor that she entertains.

Respondent next argues that her medical condition, which petitioner does not dispute, operates to defeat petitioner's challenge. However, the New Statute does not define a hardship as the sustaining of a medical condition alone. Rather, the New Statute defines a hardship as "an inability to vacate . . . and move . . . because doing so would pose a significant risk of severe illness or death . . . that a tenant . . . would face due to . . . having an underlying medical condition." (L 2021, ch 417, § 2, part C, § 1, subpart A, § 1 [5] [b].) When construing a statute, the court cannot conclude that the legislature deliberately placed a phrase in the statute which was intended to serve no purpose. (Matter of Rodriguez v Perales, 86 NY2d 361, 366 [1995]; Matter of Smathers, 309 NY 487, 495 [1956]; People v Dethloff, 283 NY 309, 315 [1940]; see also Matter of New York County Lawyers' Assn. v Bloomberg, 95 AD3d 92, 101 [1st Dept 2012] [Courts must avoid a construction rendering statutory language to be superfluous].) Accordingly, the undisputed factual proposition of respondent's medical condition alone is insufficient to demonstrate a hardship. A hardship also requires some connection between that medical condition and a danger to moving.

Respondent does indeed aver that her health status poses a danger to her such that she avoids going outside. However, petitioner avers that she has observed respondent coming and going and entertaining, which raises a fact issue as to measures respondent takes to isolate herself and, ultimately, the nexus between respondent's medical condition and her ability to move. Even without a specialized statute like the one at issue here, as a general matter the court can only resolve factual questions by hearings. (See e.g. 342 E. 67 Realty LLC v Jacobs, 106 AD3d 610, 611 [1st Dept 2013].) In addition to that unremarkable proposition of law, the New Statute also provides{**73 Misc 3d at 833} that the court "shall" hold a hearing upon a motion by a landlord attesting to a good faith belief that a tenant has not suffered a hardship. (L 2021, ch 417, § 2, part C, § 1, subpart A, § 10 [a].)

The issues that respondent raises about the dangers an eviction poses to her health and well-being are indeed serious issues, but they do not address the issue on this motion before this court at this time. The determination of this motion is not whether petitioner gets to evict respondent. The determination of this motion is whether petitioner gets a hearing on whether respondent may avail herself of the statutory stay.

Accordingly, it is ordered that the court grants petitioner's motion to the extent that petitioner is entitled to a hearing on her challenge to respondent's hardship declaration.