Civil Court of the City of New York, Kings County, May 16, 2022

Thomas & Spikes Esqs., Brooklyn (James Thomas of counsel), for petitioner.

RiseBoro Community Partnership/LEAP, Brooklyn (Kinanda Williams-Murray of counsel), for respondents.

The decision and order are as follows: Petitioner commenced this holdover proceeding seeking possession of the premises on or about September 2019. The case first appeared on the court's calendar on September 26, 2019, and was adjourned to October 25, 2019, for all purposes. On October 25, 2019, Takecia Long appeared and agreed to a final judgment of possession, warrant to be issued forthwith and execution stayed through January 31, 2020, for respondent to vacate the premises. Respondent acknowledged owing arrears of $11,000 through October 31, 2019. In consideration of the vacatur, petitioner agreed to waive past arrears and future use and occupancy through January 31, 2020. On December 3, 2019, a judgment after inquest was entered against Orville Hinds and John and Jane Doe. On January 16, 2020, respondent Takecia Long sought an order to show cause requesting additional time to find a new residence. By order dated January 26, 2020, the court stayed the warrant through February 29, 2020, provided respondent paid $2,200 by February 10, 2020. On February 21, 2020, respondent Takecia Long again sought by order to show cause an extension to vacate. By order dated March 3, 2020, the court again stayed the warrant through March 31, 2020, [*2]provided respondent paid $2,200 by March 5, 2020. On March 17, 2020, the court closed due to the COVID-19 health pandemic. On February 24, 2021, respondent filed a hardship declaration with the court which stayed the proceeding through January 15, 2022. In March 2022, petitioner by motion sought to execute upon the warrant. Respondents appeared with counsel and filed an Emergency Rental Assistance Program (ERAP) application on March 21, 2022, which stayed this proceeding. On April 19, 2022, petitioner filed the herein motion to vacate the ERAP stay asserting that the premises are located in a one- or two-family home, that respondents already have a judgment of possession against them and respondents do not qualify for the ERAP stay as rent was not sought and is not sought, and that any application under the ERAP program was fraudulent as both respondents have and continue to be gainfully employed. Petitioner argues that as the court placed the matter on the administrative ERAP calendar, which places a stay of the proceedings, the court has the inherent power, as many other{**75 Misc 3d at 766} courts have found, to modify or vacate such decrees or orders where continued enforcement of the injunctive process is inequitable, oppressive and unjust or in contravention of the policy of the law (see Dictograph Prods. v Empire State Hearing Aid Bur., 4 AD2d 508 [1st Dept 1957]).

Respondents oppose the motion and argue the following: (1) that petitioner failed to serve the Attorney General pursuant to Executive Law § 71 (3) and CPLR 1012 (b) (1) and therefore cannot challenge the constitutionality of the ERAP statute; (2) the court lacks subject matter jurisdiction to enter a declaratory judgment; and (3) equitable considerations mandate a stay until an administrative determination is made. Respondents also assert in affidavits, their financial hardships. Petitioner in reply reiterates that this is a holdover proceeding and that the last and only use and occupancy paid by the respondents was in April 2020 and respondents have remained in possession an additional 2« years beyond the vacatur date. Petitioner by affidavit asserts a financial hardship in having to house respondents for three years without any compensation.

Respondents' argument that the court must address the constitutionality of a statute in order to determine provisions of a statute is incorrect. As noted extensively in the holding in 2986 Briggs LLC v Evans (74 Misc 3d 1224[A], 2022 NY Slip Op 50215[U] [Civ Ct, Bronx County 2022]) Executive Law § 71 and CPLR 1012 (b) do not require service upon the Attorney General's office, as the notice is suggestive in nature and not mandatory.

As to the court's jurisdiction, the court has inherent authority to determine eligibility for purposes of the stay, and any concerns when facts indicate a lack of fairness, credibility, fraud or bad faith. (See Isidoro v Team Props. LLC, 2021 NY Slip Op 32626[U] [Sup Ct, NY County 2021]; 255 Skyline Dr. Ventures LLC v Ryant, 2021 NY Slip Op 33324[U] [Civ Ct, Richmond County 2021]; Harbor Tech LLC v Correa, 73 Misc 3d 1211[A], 2021 NY Slip Op 50995[U] [Civ Ct, Kings County 2021]; Gurevitch v Robinson, 2022 NY Slip Op 31697[U] [Civ Ct, Kings County 2022]; Sea Park E. L.P. v Foster, 74 Misc 3d 213 [Civ Ct, NY County 2021]; 560-566 Hudson LLC v Hillman, 2022 NY Slip Op 30718[U] [Civ Ct, Kings County 2022]; 204 W. 55th St., LLC v Mackler, 2021 NY Slip Op 32901[U] [Civ Ct, NY County 2021]; Kristiansen v Serating, 75 Misc 3d 331 [Suffolk Dist Ct 2022]; Shi Gan Zheng v Guiseppone, 74 Misc 3d 1231[A], 2022 NY Slip Op 50271[U] [Civ Ct, Richmond{**75 Misc 3d at 767}County 2022]; Papandrea-Zavaglia v Arroyave, 75 Misc 3d 541 [Civ Ct, Kings County 2022].) The courts have inherent power, and indeed responsibility, to the administration of justice, to control their calendars and to supervise the course of litigation before them. (See Matter of Grisi v Shainswit, 119 AD2d 418 [1st Dept 1986].)

The court is aware that the legislature in enacting laws determines the public policy of a state and undoubtedly enacted the provisions of the COVID-19 Emergency Rental Assistance Program of 2021 in order to meet the challenges of tenants and lawful occupants in remaining in their [*3]homes while attempting to meet their financial obligations in paying rent during and through the pandemic period. It is the courts' role to interpret the laws and give appropriate effect to the legislative intent while ensuring the rights of all individuals. (See Campaign for Fiscal Equity v State of New York, 100 NY2d 893 [2003].) Previously in the case of Chrysafis v Marks (594 US —, 141 S Ct 2482 [Aug. 12, 2021]) the United States Supreme Court found that the New York statute allowing a tenant's ability to self certify financial hardship which stayed a proceeding, without the ability to challenge such a declaration in the court, violated due process. This led the New York State Legislature to revise the statute to permit a legal challenge to the hardship declaration. Here, similarly, when filing an ERAP application, any person may file an ERAP application, which stays a proceeding until a determination is made. The mere act of filing the application, regardless of whether the person is a tenant, lawful occupant, squatter, family member, guest, licensee, or former employee, would conceivably stay the proceeding. The statute had no mechanism if the application was not completed timely, and provides no time frame for a decision, evoking a stay of indefinite stature. The person filing the application evokes the automatic stay even if such application was not made in good faith or where rent or use and occupancy is not sought. These concerns are similar to the concerns raised in Chrysafis, which barred one party from participating and engaging in the process.

Here, petitioner has not sought use or occupancy in the original petition, and in fact waived past arrears and future use and occupancy pursuant to the 2019 stipulation. Any approval by the ERAP program would not preserve any tenancy as petitioner already has a judgment and warrant against the respondents in this unregulated premises.{**75 Misc 3d at 768}

Courts have adjudicated that in appropriate circumstances, the court has the authority to lift the ERAP stay. (See Abuelafiya v Orena, 73 Misc 3d 576 [Suffolk Dist Ct 2021] [where court found it had inherent authority by statute to determine a household's eligibility under ERAP and found the respondents did not qualify as they were not experiencing housing instability as they owned another home]; Actie v Gregory, 74 Misc 3d 1213[A], 2022 NY Slip Op 50117[U] [Civ Ct, Kings County 2022] [where court vacated the ERAP stay as petitioner sought to recover possession of the premises in a four or less unit building, for himself and the use of his family. The court went on to opine that an approval of an ERAP application would not result in the preservation or creation of a tenancy]; see also 2986 Briggs LLC v Evans, 74 Misc 3d 1224[A], 2022 NY Slip Op 50215[U] [Civ Ct, Bronx County 2022] [where the court found an occupant licensee does not owe "rent" as contemplated by the ERAP statute and was therefore not eligible for the stay]; Kelly v Doe, 75 Misc 3d 197 [Civ Ct, Kings County 2022] [where court found alleged squatters were presumably not tenants entitled to an ERAP stay as there was no "rent" sought or owed]; Ben Ami v Ronen, 75 Misc 3d 335 [Civ Ct, Kings County 2022] [where court found landlord was permitted to proceed with eviction despite possible success in tenant's ERAP application in a two-family home]; Karan Realty Assoc. LLC v Perez, 75 Misc 3d 499 [Civ Ct, Queens County 2022] [where court found lifting of ERAP stay appropriate as petitioner would not accept ERAP funds and such funds would not create a tenancy]; U.S. Bank Trust, NA v Alston, 74 Misc 3d 1068 [Pleasant Valley Just Ct 2022] [where court found ERAP did not apply to individuals who have no obligation to pay rent].)

Furthermore, to allow individuals in an unregulated tenancy the benefit of a stay provision of ERAP would be futile and would lead to an absurd result, not contemplated by the statute. (See Matter of Hilbertz v City of New York, 64 Misc 3d 697 [Sup Ct, Kings County 2019] [although statutes will ordinarily be accorded their plain meaning, courts should construe them [*4]to avoid objectionable or absurd consequences].) When constructing a statute, the court must 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].) The circumstances herein differ from the holding in Sea Park E. L.P. v{**75 Misc 3d at 769}Foster (74 Misc 3d 213 [Civ Ct, NY County 2021]) where this court found respondent rent-stabilized tenant's second application for ERAP to satisfy rent arrears stayed the proceeding as respondent mistakenly did not apply for the full amount of the program and was entitled to the protections of the ERAP stay while her application was pending. Herein, the court must interpret the ERAP statute 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].) Surely the legislature did not intend for individuals who have no rental obligation to have the benefit of a stay pending their request for funds to pay an amount that was not and is not sought. The ERAP program was intended to assist lawful tenants in remaining in their homes by assisting them in their financial obligations; it was not intended to shield individuals whose tenancies have already been terminated and for them to remain at a dwelling indefinitely.

Based upon the particular facts enumerated above, petitioner's motion to vacate the ERAP stay is hereby granted. Petitioner's motion to execute upon the warrant is granted as respondents were to vacate the premises by January 30, 2020, and have had the benefit of an additional 2« years to vacate. Warrant to issue forthwith upon service of a marshals notice.