City Court of Mount Vernon, May 16, 2022

David A. Gallo, Roslyn Heights, for petitioner.

Earl M. Williams, Mount Vernon, for Lisa Godette, respondent.

Petitioner commenced this post-foreclosure holdover proceeding in May 2018 seeking to recover the residential premises.

Petitioner now moves for issuance of a warrant of eviction.

Respondent Lisa Godette opposes the motion.

On May 14, 2019, respondents Lois Godette and Lisa Godette entered into a stipulation of settlement wherein they agreed to vacate the premises by July 13, 2019. Respondents failed to vacate. A warrant of eviction issued on July 24, 2019. On September 3, 2019, respondents filed an order to show cause seeking to vacate the warrant. On September 27, 2019, the court denied the order to show cause and extended the stay on the execution of the warrant until November 8, 2019. On November 21, 2019, the warrant of eviction was reissued. A stipulation of extension was filed thereby extending the warrant of eviction until December 23, [*2]2019. Respondents filed an order to show cause in Supreme Court seeking a stay of the warrant of eviction. By decision and order (Lefkowitz, J.) dated January 10, 2020, the order to show cause was denied.

The petitioner states that due to the COVID-19 health crisis the eviction was not completed.

In opposition to the motion, respondent Lisa Godette argues that there is a Supreme Court matter pending to determine the true owner of the property. Counsel, however, has not provided this court with any documentation to support this claim and significantly, has not provided any order from the court staying the landlord-tenant proceeding while the "court matter is pending." Counsel further argues that the respondent has suffered a financial hardship during the COVID-19 period and has filed for COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) assistance. Accordingly, the respondent argues that the Tenant Safe Harbor Act prohibits a court from issuing a warrant of eviction or judgment of possession against a residential tenant or lawful occupant that has suffered{**75 Misc 3d at 772} a financial hardship during the COVID-19 covered period.

Respondent has raised the affirmative defense of financial hardship under the Tenant Safe Harbor Act. The law provides that "[n]o court shall issue a warrant of eviction or judgment of possession against a residential tenant or other lawful occupant that has suffered a financial hardship during the COVID-19 covered period" (L 2020, ch 127, § 2 [1] [emphasis added]). The legislation prohibits courts from evicting tenants who experienced financial hardship for nonpayment of rent that accrued or became due during the COVID-19 period, March 7, 2020, through January 15, 2022. Further, under the COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 8, as modified by L 2021, ch 417), tenants may apply for rental assistance to satisfy their rental arrears. Once a tenant files an application, an automatic stay is imposed on nonpayment and holdover evictions pending the approval/rejection of the ERAP application. Recently, however, "numerous courts of concurrent jurisdiction have ruled on whether the automatic stay imposed by the filing of an ERAP application can be lifted by the court, and, if so, under what circumstances" (Papandrea-Zavaglia v Arroyave, 75 Misc 3d 541, 544 [Civ Ct, Kings County 2022]). When deciding whether to vacate the stay, courts have been looking at the regulatory status of the premises, the relationship between the parties, the nature of the cause of action, and whether the applicant meets the basic criteria for ERAP assistance (id. at 544-545, citing Actie v Gregory, 74 Misc 3d 1213[A], 2022 NY Slip Op 50117[U] [Civ Ct, Kings County 2022]).

In Kelly v Doe (75 Misc 3d 197 [Civ Ct, Kings County 2022]), the trial court vacated an ERAP stay in a post-foreclosure holdover proceeding upon a finding that respondents were not tenants or lawful occupants since respondents had no contractual obligation to pay rent to petitioner.

In Diamond Ridge Partners LLC v Hanspal (73 Misc 3d 607 [Nassau Dist Ct 2021]), the court held that none of the respondents, the mortgagor and others, qualified for protection under the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA), either as a tenant or lawful occupant in a post-foreclosure holdover proceeding. "[A] 'tenant' may be defined as '[s]omeone who holds or possesses [premises] by any kind of right or title . . . [or] [s]omeone who pays rent for the temporary use and occupation of another's land under a lease{**75 Misc 3d at 773} or similar arrangement' " (id. at 610, citing Black's Law Dictionary [11th ed 2019]). " '[L]awful occupant' has [*3]been described as a 'component' of the definition of 'tenant' " (id., citing CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]). In making its ruling the court found that the financial hardship protections could only be afforded to

"a 'person responsible for paying rent . . . or any other financial obligation under a lease or tenancy agreement.' Accordingly, the protections of the COVID-19 declaration would inhere to tenants, but not to those who have no financial obligation, such as holdover tenants following a foreclosure, who at most could be considered occupants at 'sufferance,' if not outright squatters" (Diamond Ridge Partners LLC v Hanspal, 73 Misc 3d at 611, citing Bibow v Bibow, 72 Misc 3d 1212[A], 2021 NY Slip Op 50705[U] [Suffolk Dist Ct 2021]).

Further, other courts of concurrent jurisdiction have made findings that have resonated with this court on the problematic nature of ERAP's automatic stay. In 2986 Briggs LLC v Evans (74 Misc 3d 1224[A], 2022 NY Slip Op 50215[U] [Civ Ct, Bronx County 2022]), the petitioner commenced a licensee eviction proceeding. The court granted petitioner's motion to lift the ERAP stay. The court discussed and concluded that it had the authority to vacate an ERAP stay and that it was appropriate to do so. The court opined that while the New York State Office of Temporary and Disability Assistance (OTDA) has exclusive authority to establish eligibility standards, set priorities and process ERAP applications, the "Restrictions on eviction" section including the stay provision adheres to matters outside OTDA's realm. The court stated that these considerations regarding an eviction proceeding before a court do not involve any administrative agency.

In Harmony Mills W., LLC v Constantine (75 Misc 3d 594 [Cohoes City Ct 2022]), the court held that due process requires that the petitioner is entitled to a hearing challenging ERAP's administrative rule mandating an automatic stay of an eviction proceeding after an application has been filed. The court indicated that a landlord may explore during that hearing whether the ERAP application was filed in bad faith. The court defined a bad faith filing as one where "there is no realistic possibility that the landlord will receive payment from OTDA" and therefore, the application is without a realistic possibility of receiving payments (id. at 604). The court further stated{**75 Misc 3d at 774} that such ERAP application is nothing more than a delay tactic to keep the landlord from exercising its constitutional right to possession and use of its property (id., citing Matter of Pokoik v Silsdorf, 40 NY2d 769, 773 [1976]). Significantly, the court also opined that the administrative order that imposes the ERAP stay by administrative command (Admin Order of Chief Admin Judge of Cts AO/34/22) invades the role of the judiciary.

This court believes that a process whereby the tenant can "self-certify financial hardship" without any challenge is not fair to landlords. This court opines that all applications for ERAP should be subject to judicial review when there is a good faith challenge by a petitioner, and where applicable, the court can either vacate the stay or hold a hearing to determine if a stay should remain in effect while the application is pending. Further, this court notes that under the current ERAP process there is no cutoff date to submit an ERAP application. Indeed, this poorly crafted ERAP process has in effect extended the COVID-19 moratorium past January 2022 on the backs of hurting landlords with no end in sight as anyone, at any time, for any unchecked selfish or bad faith reason can file an ERAP application with the intent to get a stay.

Now, for the reasons stated above, this court finds that the Tenant Safe Harbor Act protections do not apply to holdover proceedings following foreclosure. Here the respondent did not affirm in her affidavit that there was a landlord-tenant relationship between her and the petitioner. Instead, she argues that there is a case pending in Supreme Court to determine the [*4]rightful owner of the property. Notably, there has been no decision and order rendered staying the proceedings in this court. In fact, in May 2020, the Supreme Court (Lefkowitz, J.) dismissed plaintiff Lisa Godette's claim against Federal National Mortgage Association (Yazid v Godette, 2020 NY Slip Op 35135[U] [Sup Ct, Westchester County 2020]).

Respondent moreover did not claim to have a lease agreement with petitioner. Petitioner established through documentary evidence that the property was foreclosed upon and that the petitioner is the owner of the premises. A copy of the referee's deed in foreclosure dated September 13, 2017, was attached to the petition. Accordingly, as respondent has failed to demonstrate that she is a tenant or lawful occupant of the premises, the court finds that the Tenant Safe Harbor Act financial hardship defense must fail. For these same reasons the court also finds that the ERAP stay must be vacated/lifted.{**75 Misc 3d at 775}

Accordingly, in order to forestall any further delays, the judgment of possession and warrant of eviction shall issue.