Justice Court of the Town of Pleasant Valley, Dutchess County, February 24, 2022

Catalano & O'Fallon LLP, Poughkeepsie (Sean P. O'Fallon of counsel), for respondents.

Stein, Wiener & Roth, LLP, Carle Place (Robert C. Sambursky of counsel), for petitioner.

Respondents John Alston and Cassandra Clarke seek an order staying the execution of a judgment and warrant in this summary proceeding. Respondents claim their recent filing of an Emergency Rental Assistance Program (hereinafter ERAP) application prevents further action on the previously issued warrant of eviction. Petitioner U.S. Bank Trust NA opposes the application.

Petitioner commenced this summary proceeding in this court in October 2019. The action sought a judgment for possession and warrant of eviction against the respondents herein. Respondents were tenants of property known as 107 Marshall Road, Salt Point, New York and within the jurisdiction of this court. The respondent Shari A. Gallo was the landlord of respondents John Alston and Cassandra Clarke. Shari Gallo was also the defendant in a foreclosure action involving the subject property. On March 29, 2019, 107 Marshall Road was sold to the petitioner U.S. Bank Trust NA pursuant to a judgment of foreclosure entered in the Dutchess County Supreme Court on June 21, 2018.

Following the foreclosure sale petitioner served all notices required under section 1305 of the RPAPL. Additional notices were served by petitioner in accordance with the requirements of sections 713 (5) and 735 of the RPAPL.

Initial court appearances occurred in November of 2019 and the court issued a judgment for possession and warrant of eviction on January 28, 2020. Because of the COVID-19 pandemic and resulting executive orders, execution of the warrant was not completed.

Thereafter, on or about November 2021, petitioner applied to this court for a replacement warrant of eviction as the previous{**74 Misc 3d at 1070} warrant became "stale." A replacement warrant was signed by this court on November 23, 2021, without objection by respondents.

On January 31, 2022, execution of the November 23, 2021 warrant was briefly stayed by this court's order. The stay was granted to provide the respondents an opportunity to excuse their default and to submit opposition regarding petitioner's November 2021 application for a replacement warrant. Following a February 8, 2022 hearing the stay was lifted and the court authorized continued execution on the warrant.

On February 15, 2022, respondents submitted the instant application seeking another stay of the warrant, claiming a recently filed ERAP application prevented the execution of the judgment of possession and warrant. Petitioner opposed the application and oral argument was heard on February 22, 2022.

The question before this court is whether the ERAP "stay" of proceedings applies in cases where there is an eviction proceeding following a foreclosure and no landlord-tenant relationship exists.

Generally a lease is terminated by a mortgage foreclosure and sale. A purchaser at a foreclosure sale cannot look to a lease agreement in an effort to hold occupants liable for payment of rent. Nor can the continued occupancy by the tenants create a landlord-tenant relationship. (United Sec. Corp. v Suchman, 307 NY 48 [1954]; see also BH 2628, LLC v Zully's Bubbles Laundromat, Inc., 57 Misc 3d 63 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017].) Such lack of a landlord-tenant relationship is further recognized in section 713 of the RPAPL.

The relief sought by respondents is found in the legislation known as the COVID-19 Emergency Rental Assistance Program of 2021 (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, as amended by L 2021, ch 417, § 2, part A) (hereinafter the Act). New York law requires courts construe legislation so as to avoid constitutional impairments. (Abuelafiya v Orena, 73 Misc 3d 576 [Suffolk Dist Ct 2021], citing People v Liberta, 64 NY2d 152 [1984].) In this case the court is therefore tasked with determining whether the ERAP "stay" can apply to circumstances where no landlord-tenant relationship exists. The respondents here cannot rely on the mere filing of an application to continue possession. Only those individuals eligible{**74 Misc 3d at 1071} under the Act can be afforded the benefit of the "stay." If a "stay" was granted without the property owner's opportunity to challenge the occupant's eligibility, then such an application of the Act would suffer the same due process infirmities the United States Supreme Court identified in Chrysafis v Marks (594 US —, 141 S Ct 2482 [2021]).

The Act provides financial assistance to eligible households if the household "is a tenant or occupant obligated to pay rent in their primary residence." (See Act § 5 [1] [a] [i].) In order to receive the benefits of a stay of proceedings a household must be eligible for coverage under the Act. (See Act § 8.) "Rent" under the Act incorporates the definition of section 702 of the RPAPL. (See Act § 2 [9].) Rent is defined as a monthly or weekly amount paid in consideration for the occupation of a dwelling. "Tenant" and[*3]"occupant" under the Act incorporate the definitions found in section 235-f of the Real Property Law. (See Act § 2 [7].) In order to be a tenant or occupant the respondent must occupy residential premises pursuant to a lease or rental agreement.

In the matter before this court, respondents Alston and Clarke have no obligation to pay rent to petitioner as consideration for the occupation of 107 Marshall Road. Under the definitions incorporated in the Act, respondents Alston and Clarke are neither tenants nor occupants because there is no lease or rental agreement with the petitioner. Accordingly, and despite their recently filed application for ERAP, this court finds them ineligible to benefit from the "stay of proceedings" contained in section 8 of the Act. This court will not grant respondents a stay of the eviction proceeding or execution of the warrant.

The court has considered the evidence presented in support of respondents' additional request for relief pursuant to RPAPL 749 and 753 and determined the same to be unavailing. Accordingly, that portion of respondents' request is also denied.