Civil Court of the City of New York, Kings County, March 23, 2022

Wenig Saltiel LLP, Brooklyn (Charles Loveless of counsel), for petitioner.

Brooklyn Legal Services, Brooklyn (Molly Rugg of counsel), for respondents.

The decision and order is as follows:

This is a holdover proceeding commenced after the expiration of a nonregulated lease.^[FN1] The subject building is an owner occupied two-family house that is currently under "de facto" multiple dwelling status due to occupancy of an additional area within the subject building. Petitioner asserts unrefuted that prior to even commencing this proceeding he advised respondent that he needed possession of the subject premises back for petitioner's wife to occupy (see para 4 of Ben Ami aff). Petitioner's wife is a disabled paraplegic currently in a "living facility" (see para 11 of Loveless affirmation; paras 2, 12 of Ben [*2]Ami aff).

Respondent first delayed this proceeding through the filing of a hardship declaration dated September 13, 2021. Thereafter petitioner moved to vacate the stay appurtenant to the hardship declaration, but that motion was rendered moot when the stay ended as a matter of law effective January 15, 2022. When that stay expired respondent then filed an ERAP application on or about March 7, 2022, as the proceeding was in the process of finally moving forward.

It is worthwhile noting that while automatic court COVID-19 stays and respondent's hardship declaration prevented petitioner from pursuing his rights in seeking possession of the subject premises, respondent was allowed to go forward with a series of HP proceedings against petitioner. The first (L & T index No. 6074/20) was dismissed when the landlord's motion to dismiss was granted on default. The second (L & T index No. 1119/20) was dismissed after trial. The third (index No. 420/21) was dismissed on motion of the landlord and legal fees awarded to the landlord (see exhibit D to the order to show cause). Furthermore, at no time during the year and a half stay{**75 Misc 3d at 337} of this proceeding did respondent file an ERAP application that could have run concurrent with the hardship declaration stay when monies were readily available and respondent could have long ago received a "determination of eligibility." Instead, it was only when all other delays of this proceeding had run their course that respondent chose to avail himself of this relief.

ERAP (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8), in pertinent part, states as follows:

"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 unless or until a determination of ineligibility is made. If such eviction proceedings are commenced against a household who subsequently applies for benefits under this program, all proceedings shall be stayed pending a determination of eligibility."^[FN2]

ERAP, in pertinent part, also states:

"Acceptance of payment for rent or rental arrears [under the ERAP] program shall constitute agreement by the recipient landlord or property owner: . . .

"(iv) not to evict for reason of expired lease or holdover tenancy any household on behalf of whom rental assistance [payment] is received for 12 months after the first rental assistance payment is received" (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d]).

In addressing the ramifications of the ERAP automatic stay Judge Kim Slade in Actie v Gregory (74 Misc 3d 1213[A], 2022 NY Slip Op 50117[U], *2 [Civ Ct, Kings County 2022]) noted its inherent problem:

"An occupant may file an ERAP application, whether eligible or not, an intended beneficiary of the program or not, in good faith or bad, and significantly where the [*3]outcome will not result in{**75 Misc 3d at 338} the preservation of a tenancy. In this scenario the occupant will have unilaterally invoked a stay while precluding the petitioner in the action from engagement or participation in the process to which they are a party."

Petitioner's order to show cause seeks to invalidate the ERAP stay on a specific ground to wit: "as the premises are less than 4 units, and the petitioner seeks to recover the premises for his disabled wife as her primary residence."^[FN3] ERAP normally requires a landlord accepting ERAP money to forgo for a year from evicting a tenant based on expiration of lease or holdover. Nevertheless it specifically exempts from this restriction a

"dwelling unit that . . . is located in a building that contains 4 or fewer units, in which case the landlord may decline to extend the lease or tenancy if the landlord intends to immediately occupy the unit for the landlord's personal use as a primary residence or the use of an immediate family member as a primary residence" (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 9 [2] [d] [iv]).

Respondent relies upon the maxim expressio unius est exclusio alterius. That reliance asserts that the motion must be denied absent a specific expression of an exemption within the automatic ERAP stay itself pertaining to landlords of buildings with four or less units seeking owner or family member occupancy as a primary residence. This court is fully familiar with that maxim and has applied it when appropriate within its own decisions. As to ERAP, however, the court chooses to apply a more apropos maxim to wit: in pari materia. This maxim applies here not in the sense of comparative statutes but looking at ERAP as a whole and the legislative intent behind it.

Particularly as to nonpayment proceedings, ERAP generally had potential to provide assistance that could end litigation premised upon nonpayment of arrears accruing during the now{**75 Misc 3d at 339} waned COVID-19 pandemic. The payment of such monies would also give monetary relief to landlords whose proceedings were stayed at various times during the pandemic.^[FN4] It also provided the landlord in the context of expiration of lease proceedings and holdovers the option to decide whether the receipt of monies and extension of a tenancy outweighed the landlord's need for repossession. ERAP, however, clearly intended on allowing the small owner to proceed pursuing litigation without restriction while simultaneously obtaining needed funds from the program.

ERAP was intended as a potential shield to assist tenants to obtain financial assistance with the possibility of maintaining their tenancy. It was never intended as a sword to be used by a nonregulated tenant to remain in occupancy ad infinitum where the landlord clearly seeks to end the tenancy so a disabled relative can return back home. For all of the foregoing reasons the motion is granted. Any stay resulting from the filing of any ERAP in connection with this [*4]proceeding is hereby vacated.^[FN5]