Opinion
Index No. LT No. 308750/20
03-18-2022
Valerie Hope KELLY, Petitioner, v. John DOE NO.1, John Doe #2, John Doe #3, John Doe #4, John Doe #5, John Doe #6, John Doe #7, John Doe #8, John Doe #9, John Doe #10, John Doe #11, John Doe #12 1320 East 92nd Street Brooklyn, New York 11236, Respondent-Undertenants.
Coran Ober P.C., Flushing (Steven T. Beard of counsel), for petitioner.
Coran Ober P.C., Flushing (Steven T. Beard of counsel), for petitioner.
The Decision and Order on this motion is as follows:
Petitioner commenced this holdover proceeding seeking possession of the premises by a ten day notice to quit on or about September 14, 2021. In November 2021 Jean Felisor Bey appeared and the case was adjourned for an office of civil justice referral to December 8, 2021. On December 8, 2021 the case was again adjourned for re referral for Mr. Bey, and for Michael Charles to retain private counsel. The court was then notified that an ERAP application was filed and the case was placed on the ERAP administrative calendar.
Petitioner now by motion seeks to lift any stay based upon the ERAP application. Petitioner argues that respondent(s) do not qualify as "tenants" as defined by the COVID-19 Emergency Rental Assistance Program (ERAP) under part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417 and seeks restoration of the case for trial against Respondent John Doe #1 a/k/a Jean Felisor-Bey and John Doe #2 a/k/a Michael Charles and upon restoration seeking a default judgments versus the other remaining respondents.
The court notes that service of the motion was proper and respondents failed to appear on the return date of the motion, March 9, 2022. The motion was then marked submitted on March 9, 2022.
In support of petitioner's motion, petitioner attaches the following documents: (1) copy of notice of petition and petition; (2) affidavits of service of notice of petition and petition; (3) affidavit of support by petitioner's attorney and Hope Kelly, the petitioner; (2) copy of prior judgment of possession for this property issued under index# 59169/19 on August 28, 2019; (3) copy of the deed indicating a transfer form U.S. Bank to Hope Kelly dated June 5, 2021; (4) affidavit of service of notice to tenant with COVID-19 Hardship Declaration; (5) email from court indicating notice of ERAP application; (6) affirmation of military investigation and (7) affidavit of service.
Petitioner states that it purchased the building on or about May 11, 2021. Prior to purchasing the building, the prior owner, U.S. Bank had commenced a prior summary proceeding under index No. LT #59169/19. The former owner obtained a judgment of possession against all the occupants on June 12, 2019 including John and Jane Does. The warrant of eviction was executed by Marshal Guida on December 3, 2019, removing all occupants from the premises. U.S. Bank then sold the premises to the petitioner on April 26, 2021, date of delivery on May 11, 2021 and recorded on June 5, 2021. Subsequent to the purchase of the building, petitioner discovered that after the marshal took possession in 2019, the locks were removed and that unknown persons were occupying the premises. Petitioner states that at the time of commencement of this proceeding, the respondents had refused to provide their names and thus there were named as "John Doe" respondents. Petitioner argues that as respondents are squatters they do not meet the definition of "tenants" as defined by the COVID-19 Emergency Rental Assistance Program (ERAP) under Part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417.
Petitioner argues that it has not sought any use and occupancy or rent and that respondents are not tenants or a household entitled to the stay provision based upon an ERAP application. Section 8 of subpart A of part BB of chapter 56 of the laws of 2021 as modified by L. 2021, c. 417 provides "except as provided in section nine-a of this act, in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits under this program or any local program administrating federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility." Petitioner further points out that Section 5 of the subpart A of part BB of chapter 56 of the laws of 2021, provides that "A household shall be eligible ... a household shall be eligible if it: (I) is a tenant or occupant obligated to pay rent in their primary residence in the state of New York ...". the term "rent" is further defined in Section 2 of the subpart A of part BB of chapter 56 of the laws of 2021 and references RPAPL section 702 which states rent shall mean a weekly or monthly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement."
Petitioner agues that respondents are neither tenants nor lawful occupants and have no written or oral agreement to pay rent. Petitioner refers this court to the prior proceeding under index No LT #59169/19 wherein the former owner, U.S. Bank Trust N.A. which acquired the premises pursuant to a foreclosure and referees deed in 2017, obtained a judgment of possession against Shaun Tomlinson, Ericka Tomlinson, Fred Tomlison, Larry Washington, Gary Dorman aka Gary Dormer, Shandell Stevenson, Michael Charles, Omalayo Stevenson, Shondelle Stephen, John Does and Jane Does on June 12, 2019. In that proceeding other individuals also sought by order to show cause to vacate the judgments, to wit: Shallah Ra'heem Bey, Llewellyn-Bey, Sherwin Stephen, Omatoyo Neverson, and well as Gary Dorman aka Gary Dormer. In all 11 order to show causes were filed in the previous case, and all were denied for lack of appearance, standing and or merit. The marshal execute the warrant and obtained legal possession of the entire premises on or about December 3, 2019.
In the present case, Michael Charles and Jean Felisor Bey appeared in court. Mr. Charles declined a referral to OCJ and stated he would be hiring private counsel and Mr. Bey was referred to the office of civil justice for a legal services provider. Brooklyn Legal Services then informed the court that they were unable to reach Mr. Bey despite several attempts to do so. Subsequently, the court was informed that an ERAP application had been filed.
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 in order to meet the challenges of tenants and lawful occupants in remaining in their 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, Inc. v. State of New York , 100 N.Y.2d 893, 769 N.Y.S.2d 106, 801 N.E.2d 326 [2003] ). Previously in the case of Chrysafis v. Marks , Sup. Ct., ––– U.S. ––––, 141 S.Ct. 2482, 210 L.Ed.2d 1006 (2021) the United Stated 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, former employee, would conceivably stay the proceeding. The statute had no mechanism if the application is not completed timely, and provides no time frame for a decision, evoking stay of indefinite stature. The person filing the application may do so, even as if herein, rent or use and occupancy was never sought or owed and whether or not such an application was made in good faith. These concerns are similar to the concerns raised in Chrysafis, supra which barred one party from participating and engaging in the process.
Here, petitioner has not sought any use or occupancy or rent, and alleges that the individuals broke in after the prior owner obtained legal possession pursuant to a judgment and warrant in 2019. Despite proper service of the motion, respondents have failed to appear or raise any defense, or submit an answer. This court finds that a stay pending an ERAP application in a proceeding where use and occupancy/rent was never sought and is conceded by petitioner to not be sought, as petitioner alleges the respondents are squatters, would be futile, as any approval of ERAP funds would "not result in the preservation or creation of a tenancy" (See Actie v. Gregory , 2022 N.Y. Slip Op. 50177(U), 2022 WL 534305 [Civ. Ct., Kings Co. 2022]; Abuelafiya v. Orena , 73 Misc. 3d 576, 155 N.Y.S.3d 715 [District Ct., Suffolk County 2021] ) (court found that tenants ineligible for ERAP and vitiated ERAP stay). Here the equities of the unique facts of this case, the foreclosure by the bank, its legal possession of the premises through court process and obtainment of a judgment and warrant under LT # 59169/19 and the emergence of new individuals at the premises lead this court to find that the ERAP stay does not apply. To allow individuals, alleged to be squatters, who are not tenants, the benefit of a stay provision of ERAP would be futile and would lead to an absurd result, not contemplated by the statute. (See Hilbertz v. City of New York , 64 Misc. 3d 697, 98 N.Y.S.3d 776 [Supreme Ct., Kings Co. 2019) (Although statutes will ordinarily be accorded their plain meaning, courts should construe then to avoid, objectionable or absurd consequences). The circumstances herein differ from the holding in Sea Park East LP v. Foster, 74 Misc. 3d 213, 160 N.Y.S.3d 792 [Civ. Ct. Kings Co. 2021] where this court found respondent, a rent stabilized tenant's second application for ERAP stayed the proceeding as respondent was clearly an individual who owed rental arrears and was entitled to the protections of the ERAP stay. Herein, the court must interpret the ERAP statute in a different light, as an absurd result, is certainly not contemplated by the legislature. (See Hibert v. City of New York , 64 Misc. 3d 697, 98 N.Y.S.3d 776 [S.C. Kings Co. April 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, 427 N.Y.S.2d 381 [Civ. Ct. Queens Co. April 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)].
The court notes that Michael Charles was named in the prior proceeding under LT #59169/19 and a legal judgment of possession was already entered against him with a marshal executing the warrant. Mr. Charles was already adjudicated to have no legal right to possession to the premises, yet is residing at the premises once again. To allow someone who clearly has been adjudicated to have no legal rights to the premises to evoke a new stay of the proceedings due to an ERAP application, clearly would lead to an absurd result.
Based upon the particular facts enumerate above, petitioner's motion is granted and the ERAP stay is hereby lifted.
This constitutes the decision and order of this court.