District Court of Suffolk County, Third District, April 7, 2022

Toscani Law Firm, P.C., Hauppauge (Richard Toscani of counsel), for petitioner.

Lance Serating, respondent pro se.

Debra Serating, respondent pro se.

The court scheduled a hearing to ascertain the applicability of any statutory stays to the above captioned summary eviction proceeding. If none existed, the matter was to proceed to trial on the merits. At the hearing held March 12, 2022, the following facts were not disputed:

1. The respondent tenants, Lance Serating and Debra Serating (hereafter the Seratings or tenants), stopped paying rent in February 2020, after taking residence in the subject premises (64 Harrison Drive, East Northport, New York 11731) pursuant to a written two year lease dated [*2]May 7, 2019, which expired upon its own terms and now exists as a month to month tenancy at $3,200 per month.

2. There exists $60,800 (19 months) of rental arrears running through March 2022.

3. The landlord Ivor Kristiansen commenced this holdover action pursuant to petition dated April 2, 2021, after prior proper service of a 90 day notice of lease termination.

4. The Seratings filed an application for rental relief under New York's COVID-19 Emergency Rental Assistance Program of 2021 (L 2021, ch 417, § 2, part A, § 4, amending L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8 [hereafter ERAP]) on January 14, 2022. The status of the ERAP application on this date was "not completed" "pending Documents."

5. The landlord does not want any ERAP funding, and refuses to participate in the tenant's application.

The lone disputed fact is whether the Seratings are actively prosecuting their ERAP petition in "good faith." See Barton v Bixler (74 Misc 3d 1226[A], 2022 NY Slip Op 50228[U] [Suffolk Dist Ct 2022]) for this court's opinion allowing for same. At the eligibility hearing Mr. Serating's testimony established the following:{**75 Misc 3d at 333}

A. Mr. Serating uploaded seven documents including:

Social Security card number

Photo I.D.

Bank Statements

Tax Returns

Confirmation numbers were given by the ERAP Administrating Agency for said documents.

B. Mr. Serating initially had difficulty uploading said documents on January 17, 2022, as a result of a problem with utility charges, but gave up on same (the utility charges) and finalized the application on or about March 16, 2022.

C. As of March 17, 2022, the Seratings' ERAP application is marked "pending" on its website.

The court has previously opined that it has concurrent authority to determine ERAP "eligibility." (See Abuelafiya v Orena, 73 Misc 3d 576, 580 [Suffolk Dist Ct 2021].) Other courts have similarly come to said conclusion at least to the extent that an ERAP "tenant . . . must actively [*3]pursue his . . . application in good faith." (See Hudson Ave. Hous. Assoc., LLC v Howard, 75 Misc 3d 419, 426 [Glens Falls City Ct 2022].)

The landlord, without any affirmative proof other than cross-examination, asserts that the failure to complete the application until March 11-16, 2022, evidences a failure to "actively pursue" same. As the burden of proof on this issue is upon the landlord, the tenant's testimony by itself is prima facie sufficient to establish the ERAP application as being pursued in good faith.

The more problematic issue is the landlord's contention that he is refusing ERAP participation and payment. At least two sister courts have indirectly (in the nature of dicta) determined that a landlord may refuse ERAP participation, thereby circumventing any stay, and is allowed to move forward with an eviction. (See Actie v Gregory, 74 Misc 3d 1213[A], 2022 NY Slip Op 50117[U] [Civ Ct, Kings County 2022]; see also Carousel Props. v Valle, 74 Misc 3d 1217[A], 2022 NY Slip Op 50168[U] [Suffolk Dist Ct 2022].)

It is also this court's opinion that landlords can refuse participation in ERAP. In that instance ERAP has the ability{**75 Misc 3d at 334} to make an alternative award to the tenant. In this instance, the tenant continues to be protected by a statutory stay for the "covered arrears" which cannot exceed 15 months. Such an award contemplates that the tenant is then responsible to settle both covered arrears as well as non-covered rent obligations to the landlord. In this case the arrears are 19 months x $3,200 which totals $60,800. ERAP's maximum award is 15 months or $48,000. As such $12,800 is presently due for which no government assistance is available.

Accordingly, the court continues the stay of the landlord's pursuit of $48,000 representing ERAP funds and vacates the ERAP stay to require the tenant to pay $12,800 of uncovered arrears on or before May 1, 2022. If said sum is paid no judgment or warrant of eviction shall issue. If the tenant receives any ERAP funds and fails to pay same to the landlord, he shall be entitled to submit an application for an amended judgment and a warrant of eviction. The landlord may seek to hold the tenant responsible for any future post-May 1, 2022 arrears via the commencement of a new petition.