Civil Court of the City of New York, Kings County, September 21, 2023

RiseBoro/LEAP, Brooklyn (Alex Franco of counsel), for Donna Day, respondent.

Ettick Campbell, Brooklyn, for petitioner.

The decision and order on this motion is as follows:

Petitioner commenced this nonpayment proceeding on August 16, 2021, seeking rental arrears. On August 18, 2021, respondent Donna Day filed a hardship declaration which stayed the proceeding through January 15, 2022, as respondent checked off the statement of "I am experiencing financial hardship, and I am unable to pay my rent or other financial obligations under the lease in full or obtain alternative suitable permanent housing." Respondent Donna Day then filed an answer on September 7, 2021, noting the petitioner is not the owner, warranty of habitability and a general denial. The case was then administratively adjourned several times due [*2]to COVID-19 administrative calendering and then placed on the ERAP (COVID-19 Emergency Rental Assistance Program of 2021) administrative calendar. RiseBoro legal services filed a notice of appearance for Donna Day on September 15, 2022. On May 19, 2023, petitioner filed a motion seeking to restore the proceedings to the court's calendar and vacate any ERAP stay. Said motion was settled by stipulation on July 26, 2023, and granted and the case was adjourned to September 6th and then the 20th for motion practice. RiseBoro filed the herein motion seeking summary judgment pursuant to CPLR 3212 seeking dismissal of the proceeding.

Respondent seeks dismissal of the proceedings on the following bases: there was (1) no lease in effect with the petitioner at the time the case was commenced; (2) no privity of contract and therefore a nonpayment proceeding may not be commenced; (3) lack of personal jurisdiction in that the affidavit of service was not filed within three days of service with the clerk of the court and therefore service is incomplete and (4) a failure to serve a 30 day rent demand. In support respondent offers the deed to the former owner Joyce Grant from 1982, the recorded deed from Owen Bailey to Paul Gentles and himself, a copy of the first page of a lease from 2018 to 2019 between Joyce Grant and Donna Day for $1,000 per month and an NYC{**81 Misc 3d at 418} Department of Finance printout of a website indicating owners as Owen Bailey and Paul Gentles of a four unit building and an undated printout showing that the building is not validly registered or the last registration was invalidated in 2022.

In opposition petitioner notes it was the owner before the case commenced and that there is a lease in effect. Petitioner argues that in respondent's answer she acknowledged that rental arrears are owed and that petitioner is the owner of the premises. Petitioner notes that respondent sought and received ERAP funds and therefore acknowledged her tenancy. Pursuant to the OTDA (Office of Temporary and Disability Assistance) website, OTDA approved an ERAP payment for the following months: March 2020 through September 2020, February and March 2021, and September through November 2021. Petitioner notes that ERAP was approved for $16,500 on or about January 4, 2023, for $1,100 per month. Petitioner argues that respondent cannot now allege that there is no rental agreement between the parties when she had previously acknowledged, requested and received rental arrears. Petitioner notes that it properly served the 14 day required notice and a 30 day notice is not proper in a nonpayment proceeding.

Respondent seeks summary judgment pursuant to CPLR 3212. Summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). "[T]he proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). In considering a summary judgment motion, the court's function is to determine whether a material issue of fact exists, not to determine said issues (Esteve v Abad, 271 App Div 725 [1st Dept 1947]). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

In Fairfield Beach 9th, LLC v Shepard-Neely (77 Misc 3d 136[A], 2022 NY Slip Op 51351[U], *4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]), and in ZB Prospect Realty v{**81 Misc 3d at 419} Olenick (79 Misc 3d 592, 594-595 [Civ Ct, Kings County 2023]), the court held that

"[i]t is undisputed that no rental agreement was in effect when this proceeding was commenced, and a nonpayment [*3]proceeding lies only where a tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held or, in other words, there must be a rental agreement in effect at the time the proceeding is commenced pursuant to which rent is due and owing. Thus, this nonpayment proceeding does not lie" (internal quotation marks and citations omitted).

However, here OTDA's action on respondent's ERAP application complicates respondent's argument. Respondent argues that there was no lease after 2019; however, OTDA paid petitioner for 15 months after the supposed lease expiration at a new rate of $1,100, an amount above the prior monthly rent with the previous landlord, based upon respondent's representation to OTDA that she had a rental obligation to pay rent owed. A landlord must apply tenders of rent from a government agency to the months the agency earmarks the tenders for (Neptune Dev. Corp. v Kalogiannis, 63 Misc 3d 164[A], 2019 NY Slip Op 50933[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; 1 Beach 105 Realty LLC v Murphy, 2020 WL 9258266,1, 2020 NYLJ LEXIS 1865, *5 [Civ Ct, Queens County, Dec. 18, 2020, No. 72225/2019]). Petitioner must therefore apply ERAP benefits to months postdating the expiration of the lease. Payment of rent after an expiration of a lease shows an intention to continue a landlord/tenant relationship at the same monthly rent (Priegue v Paulus, 43 Misc 3d 135[A], 2014 NY Slip Op 50662[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). Normally, if a tenant remains in possession after a lease expires with no new agreement as to a rental amount, a landlord's remedy is to obtain possession via a holdover proceeding (Real Property Law §§ 226-c [1] [a]; 232-a). However, a successful ERAP application precludes that remedy. A landlord's acceptance of rental arrears from ERAP "shall constitute agreement by the . . . landlord . . . not to evict for reason of expired lease or holdover tenancy any household on behalf of whom rental assistance 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] [iv]).

If the court credits respondent's arguments, respondent would have gained the benefit of being permitted to reside at{**81 Misc 3d at 420} the premises for one year after acceptance of the rent, but without the legal obligation to pay rent for that year period. Respondent's logic would allow tenants who obtain an ERAP benefit that a landlord accepts to live in their apartments for free for a year without the landlord having a remedy. The law does not permit a nonowner to possess a property for free (35 Lispenard Partners, Inc. v 35 Smoke & Grill, LLC, 74 AD3d 496, 496 [1st Dept 2010]; Ruru & Assoc. LLC v Weinberg Holdings, LLC, 2022 NY Slip Op 30405[U],*3 [Sup Ct, NY County 2022]). Canons of statutory construction do not favor an interpretation of a statute that would render a right—like a right to compensation for possession of one's property—without a remedy (Matter of Bailey [Bush Term. Co.], 265 App Div 758, 761 [1st Dept 1943]; Matter of Myones [80th Ave. Realty Corp.], 191 Misc 280, 282 [Sup Ct, Kings County 1947]). The court does not interpret the ERAP statute to deprive a landlord of a nonpayment remedy if a tenant without a written lease does not pay rent in the year after a landlord's acceptance of ERAP benefits, but who nonetheless remains at the premises.

Rather, an occupant's voluntary ERAP application and the one year requirement of maintaining that tenancy constitutes an intentional effort by the legislature to bind landlords and to treat accepted ERAP applicants as a tenant for one year, an act consistent with an intention to continue a landlord/tenant relationship (see JSB Props. LLC v Yershov, 77 Misc 3d 235 [Civ Ct, NY County 2022]; Priegue, 2014 NY Slip Op 50662[U],*2). Accordingly, here, the court finds that a landlord/tenant relationship exists between the parties and continued at least for one year after payment of the ERAP benefits in January 2023 at a rate of $1,100.00 a month.

As respondent voluntarily applied for ERAP in 2021, she affirmed a landlord/tenant [*4]relationship with the petitioner and rental arrear obligations; respondent's motion seeking dismissal for lack of a lease or a privity of contract is denied.

As respondent failed to assert any jurisdiction defense in the answer dated September 7, 2021, respondent may not now, two years later, seek dismissal of such. Respondent appearing in the action and electing to answer the petition without objection to jurisdiction conferred jurisdiction upon the trial court and waived the defense of lack of jurisdiction (CPLR 3211 [e]). Any objection to service is waived if it is not interposed in an answer (see RPS Greenvale Realty, LLC v Rosa's of Roslyn, Inc., 18 Misc 3d 1145[A], 2008 NY Slip Op 50442[U] [Nassau Dist{**81 Misc 3d at 421}Ct 2008]; Addesso v Shemtob, 70 NY2d 689 [1987]; DeFilippis v Perez, 148 AD2d 490 [2d Dept 1989]). Based upon the above, respondent's motion to dismiss for lack of jurisdiction in any deficiency of filing the affidavit of service is denied.

Respondent's motion seeking dismissal for failure to serve a 30 day notice in a nonpayment proceeding is devoid of any merit and is denied.

Respondent's motion is denied in all parts.