Civil Court of the City of New York, New York County, December 10, 2021

Rosenblum & Bianco, LLP (Richard Byrne of counsel) for petitioner.

Legal Services NYC (Jasmin Crowder of counsel) for Sheniqua Foster, respondent.

The decision and order on these motions are as follows:

Petitioner Sea Park East L.P. commenced this nonpayment proceeding against Sheniqua Foster and Rommell Middletown seeking rental arrears. On January 29, 2020, Ms. Foster entered into a final judgment of possession and money in the amount of $13,249, issuance of a warrant forthwith and execution stayed through March 10, 2020, for payment. A warrant was [*2]issued on March 9, 2020.

The court subsequently closed on March 17, 2020, due to the health pandemic caused by COVID-19. As a result, a series of administrative orders (AOs) and directives (DRPs) were issued by the Chief Administrative Judge and the Supervising Judge of the Civil Court of the City of New York.

The legislature enacted a statute to distribute funds to pay rental arrears known as the COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, as amended by L 2021, ch 417, § 2, part A).

Petitioner by motion sought in November 2020 to execute upon the warrant per Civil Court of City of New York Directive and Procedure 213 (DRP-213), said motion was calendered in May 2021 and respondent appeared and sought and received counsel. On June 4, 2021, respondent filed a hardship declaration with the court. On August 26, 2021, ERAP approved $18,636 in arrears for April 2020 through March 2021. Petitioner, by motion filed in October 2021, sought to vacate the ERAP stay and strike the hardship declaration and sought leave to execute upon the warrant per DRP-217 and chapter 417 of the Laws of 2021. Both parties agreed per stipulation dated November 15, 2021, that the hardship declaration was withdrawn. Respondent has now filed both an appeal of the original ERAP determination, alleging three more months of rent should have been approved, and a second ERAP application on November 12, 2021, for the months of April 2021 through June 2021.

Petitioner argues that a majority of the arrears are pre-COVID and not eligible for coverage under the ERAP legislation. Petitioner cites to section 8 of subpart A of section 1 of{**74 Misc 3d at 215} part BB of section 1 of chapter 56 of the Laws of 2021 (as amended by L 2021, ch 417, § 2, part A, § 4) which 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 local program administering federal emergency rental assistance program funds unless or until a determination of ineligibility is made. Except as provided in section nine-a of this act, in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility."

Petitioner argues that the "would be eligible for coverage" indicates that the ERAP stay would not apply to pre-pandemic judgments.

Respondent in opposition states that the statute's plain language indicates that in any nonpayment proceeding, where an ERAP application is pending, the proceeding is stayed. Respondent's attorney argues that respondent erroneously sought only 12 months of arrears in her first ERAP application and should have applied for 15 months. Due to conflicting directions from the Office of Temporary and Disability Assistance, respondent filed both a new second ERAP application for the additional three months of rent and a notice of appeal.

The court notes that petitioner's reliance on the term "would be eligible" speaks to the ability to commence a proceeding for a household that applies for this program. The statute then begins a new sentence and states that in any pending proceeding, whether filed before, on or after September 2, 2021, against a household that has applied for this program, all proceedings shall be stayed pending a determination of eligibility. When constructing a statute, the court must [*3]conclude that the legislature deliberately placed wording to serve its intended purpose (see Matter of Rodriguez v Perales, 86 NY2d 361 [1995]; Bitzarkis v Evans, 73 Misc 3d 827 [Civ Ct, Kings County 2021]). Had the legislature intended that only eligible applicants be{**74 Misc 3d at 216} granted a stay, pending determination, the statute would have so stated. The plain language of the statute clearly indicates that any pending ERAP application stays proceedings until an eligibility determination is made. The circumstances herein differ from the holding in Abuelafiya v Orena (73 Misc 3d 576 [Suffolk Dist Ct 2021]), where the court found the automatic stay provision in ERAP did not address the due process issues raised in Chrysafis v Marks (594 US &mdash, 141 S Ct 2482 [2021] [finding that COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (L 2020, ch 381) denial of landlords' ability to challenge the hardship declaration to be a violation of due process]). Herein, respondent's first application was approved and a second application was placed for months erroneously not applied for in the first application. The court also notes petitioner's argument that to allow a stay for a second ERAP application would allow all respondents after being denied by ERAP to just reapply for the ERAP program over and over again to gain a stay as unpersuasive. Should that have occurred in this case, the court may have interpreted the ERAP legislation in a different light as an absurd result is certainly not contemplated by the legislature (see Matter of Hilbertz v City of New York, 64 Misc 3d 697 [Sup Ct, Kings County, Apr. 11, 2019] [statutes will ordinarily be accorded their plain meaning; however courts should construe them to avoid objectionable, unreasonable or absurd results]; Maiello v City of New York, 103 Misc 2d 1064 [Civ Ct, Queens County, Apr. 24, 1980] [court need not follow the literal word of a statute where to do so would produce a result that legislature clearly did not intend]).

As the respondent's second ERAP application for months not sought for in the first application is pending, the proceeding is hereby stayed pending an outcome of eligibility. Petitioner's motions are denied in all aspects.