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How Some NY Judges Are Unpausing Eviction Cases

By Emma Whitford · 2022-07-26 16:32:35 -0400 ·

To delay the case further would be "futile." To keep it on hold would be "absurd."

These are among the adjectives peppering a growing body of decisions in New York's housing courts, where some judges have said they can restart eviction cases while tenants await determinations on their applications for pandemic rental assistance. 

Tenants rally for eviction protections and rent relief in Brooklyn, New York, on Aug. 19, 2021. New York is among several states to pause eviction cases while tenants wait for pandemic rent assistance, but local judges have lifted the stay in several cases in recent months. (Emma Whitford / Law360)

New York is among several states — including Oregon, Massachusetts and California — to pause cases at least temporarily while such applications are being processed, to prevent premature evictions. And while tenant lawyers say New York's rule has been broadly effective, some judges have said they have the authority to lift the stay.

"We are definitely seeing the judges being more receptive to motions to vacate [Emergency Rental Assistance Program] stays," Deborah Riegel, a member of Rosenberg & Estis PC specializing in real estate litigation, told Law360 this month.

Yet this sort of relief can still be an uphill battle for landlords who are increasingly frustrated with case delays, according to Benjamin Margolin, an associate with Belkin Burden Goldman LLP.

New York's Emergency Rental Assistance Program, or ERAP, law states that pending applications to the primarily federally funded program pause all eviction proceedings, so long as the tenant is not found to be causing a persistent nuisance.

"The plain language really provides that these cases get stayed blanketly," Margolin said, adding that for a landlord to be successful, "there needs to be a lack of fairness, an issue with credibility or bad faith."

To better understand the legal basis for lifting an ERAP stay — and why landlords are seeking the remedy — Law360 reviewed more than 30 housing court opinions issued between September and July.

The list is not exhaustive, and is based on keyword searches in a state database of published opinions, as well as unpublished opinions shared by individual attorneys.

In most instances, judges appear to have intervened in holdover eviction cases, where the landlord may be alleging that the tenant has overstayed a lease or doesn't have a formalized rental agreement.

Click the case name to view the text of its decision; expand to see more information, including a snippet of the decision's reasoning. The colors show the result of the decision: pause affirmed in red, pause vacated in blue.

Case Date County Judge Type ERAP impact Reasoning Snippet
Abuelafiya v. Orena 9/17/2021 Suffolk Hackeling nonpayment vacated "The court finds as a matter of fact that the tenants are ineligible for ERAP funding as they are not experiencing housing instability by virtue of the fact that they own a second house they may relocate to."
255 Skyline Drive v. Ryant 10/14/2021 Richmond Smith holdover affirmed "[T]he statute does not provide for lifting of the stay in the event the petitioner no longer seeks to obtain arrears that it had previously requested."
Harbor Tech LLC v. Correa 10/25/2021 Kings Stoller nonpayment affirmed "If a landlord receives a payment of rent arrears through ERAP, the payment could naturally and foreseeably resolve the nonpayment litigation. Staying or otherwise restricting litigation to resolve a dispute by alternative means does not deny due process."
204 W. 55th St. LLC v. Mackler 12/2/2021 New York Fang holdover affirmed "The statute does not provide
the Housing Court with the authority to determine whether a person is eligible for ERAP
assistance. This ERAP eligibility determination lies solely with OTDA."
Sea Park E.L.P. v. Foster 12/10/2021 New York Cohen nonpayment affirmed "As the respondent's second ERAP application for months not sought for in the first application is pending, the proceeding is hereby stayed pending an outcome of eligibility."
Carousel Props. v. Valle 2/16/2022 Suffolk Matthews holdover affirmed "This Court does not possess the jurisdiction to make this determination absent clear and convincing evidence of fraud. Without such proof, the court can neither issue a ruling denying or granting ERAP benefits. To do so would upend a state-wide process put in place pursuant to statutory authorization."
Actie v. Gregory 2/18/2022 Kings Slade holdover vacated "While the COVID-19 pandemic prompted the Legislature to enact the statute and provide this sweeping relief en masse, to deny a party-in-interest an opportunity to challenge a stay if it can demonstrate the futility of the stay in a particular context or that it should otherwise not apply, would contravene most of our legal framework and fundamental ideas of fairness."
560-566 Hudson LLC v. Hillman 2/24/2022 Kings Ferdinand holdover affirmed "The restrictions on evictions do not exclude a proceeding based upon the status of
the applicant as a 'tenant' or 'occupant' and the Court is not persuaded that the
legislature intended a selective application of the stay on this basis."
U.S. Bank Trust, NA v. Alston 2/24/2022 Pleasant Valley (Dutchess) Sears holdover vacated "If a 'stay' was granted without the property owner's opportunity to challenge the occupant's eligibility, then such an application of the Act would suffer the same due process infirmities the United States Supreme Court identified in Chrysafis v. Marks."
Gurevitch v. Robinson 2/28/2022 Kings Stoller holdover affirmed "Significantly, this matter is predicated on a termination of a tenancy, there is a judgment for unpaid use and occupancy, and Petitioner has repeatedly cited substantial arrears in use and occupancy throughout the motion practice in this proceeding."
Kelly v. Doe 3/18/2022 Kings Cohen holdover vacated "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."
Hudson Ave. Hous. Assoc., LLC v. Howard 3/18/2022 Glens Falls (Warren) Hobbs holdover affirmed with hearing option "[T]he petitioner is entitled to a due process hearing to determine whether the respondent is engaging in conduct to frustrate, delay, or otherwise impede a final determination of her ERAP application."
2986 Briggs LLC v. Evans 3/22/2022 Bronx Lutwak holdover vacated "[T]he ERAP Law also does not include any provisions preventing landlords from challenging such a stay in a pending court proceeding and raising whatever cogent legal arguments they may have, including that ERAP funds may be irrelevant to a particular case, or that occupants of a particular residence clearly do not meet one or more of the program's fundamental eligibility criteria."
Ben Ami v. Ronen 3/23/2022 Kings Barany holdover vacated "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."
Karan Realty Associates v. Perez 3/25/2022 Queens Kuzniewski holdover vacated "Respondent's possession of the premises is purely incidental to his now terminated employment. The petitioner has represented that they will not participate with ERAP nor will they create a tenancy."
Silverstein v. Huebner 3/29/2022 Kings Stoller holdover vacated "Petitioner's emphatically- and frequently-expressed desire to regain possession of the subject premises for the personal use of his large family renders ERAP particularly irrelevant to a resolution of the issues in this litigation."
Kristiansen v. Serating 4/7/2022 Suffolk Hackeling holdover partially vacated "Accordingly, the court continues the stay of the landlord's pursuit of $48,000 representing ERAP funds and vacates the ERAP stay to require the tenant to pay $12,800 of uncovered arrears on or before May 1, 2022."
Papandrea-Zavaglia v. Arroyave 4/7/2022 Kings Scheckowitz holdover vacated "Requiring landlord to wait 180 days to receive an approval from ERAP is an unnecessary exercise in futility where landlord has no intention of accepting such payment and reinstating the terminated tenancy."
Laporte v. Garcia 4/11/2022 New York Shahid holdover affirmed "To hold here that the ERAP stay would be vitiated based solely upon Petitioner's representation that he is only interested in possession would potentially make an ERAP stay inapplicable to almost all holdover proceedings where possession is the desired outcome for petitioners."
Shi Gan Zheng v. Guiseppone 4/14/2022 Richmond Ofshtein holdover vacated "This Court agrees that in accordance with the ERAP statute and its intent, the Housing Court has the inherent power to review the circumstances of each case to assess whether the Respondent is covered by the statute and entitled to its protections."
Harmony Mills W. LLC v. Constantine 4/25/2022 Cohoes (Albany) Marcelle nonpayment affirmed with hearing option "This scenario (long delays and depleted funds) presents a significant risk of erroneous deprivation of a landlord's property right."
Barker v. Cruz 5/13/2022 Bronx Ibrahim holdover vacated "In analyzing the statute, numerous courts have allowed vacatur of the ERAP stay to avoid inequity or fraud or absurd or futile results."
Federal Ntl. Mtge. Assn. v. Godette 5/16/2022 Mt. Vernon (Westchester) Johnson holdover vacated "Indeed, this poorly crafted ERAP process has in effect extended the covid 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."
Joute v. Hinds 5/16/2022 Kings Cohen holdover vacated "The ERAP program was intended to assistant [sic] 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."
Eight-17 Assoc. LP v. Cameron 5/19/2022 New York Finkelstein holdover affirmed "A similar result was determined in two cases, both licensee holdover proceedings involving rent
stabilized premises and succession claims, as is the case here."
Kessler v. Carbone 5/20/2022 Richmond Ofshtein holdover vacated "This Court agrees that in accordance with the ERAP statute and its intent the Housing Court has the inherent power to review the circumstances of
each case to assess whether the Respondent is covered by the statute and entitled to its protections."
178 Broadway Realty Corp. v. Charles 5/23/2022 Kings Slade holdover vacated "As there is currently no showing of a tenancy that may be imposed upon petitioner and petitioner may elect to not participate in the ERAP program so long as it is willing to accept the financial repercussions of declining ERAP, it is at liberty to do so and the maintenance of the stay at this juncture is prejudicial and serves no discernible legal purpose."
Mason v. Reyes 5/31/2022 Kings Cohen nonpayment affirmed "Herein, petitioner did not commence a holdover proceeding, but instead commenced a non payment proceeding seeking rental arrears. As such, the proceedings are hereby stayed pending an outcome of eligibility under the ERAP program. Petitioner's motion is denied in all aspects."
Robo LLC v. Matos 6/2/2022 Bronx Ibrahim nonpayment affirmed "[I]t is possible that respondent's application will be approved...eventually."
EQR-Hudson Crossing LLC v. Magana 6/7/2022 New York Bacdayan holdover affirmed "[P]etitioner has not provided an affidavit averring that it will not accept any approved monies. At oral argument, petitioner did not argue this point. Thus, petitioner does potentially stand to benefit in part from an ERAP approval."
Valsac 908 LLC v. Crespo 6/10/2022 New York Bacdayan holdover vacated "Moreover, it is not disputed that respondent has never paid a weekly or monthly amount of rent in consideration for the use and occupancy of the apartment. In fact, respondent does not pay rent for the premises in consideration for his job as superintendent."
Souffrant v. Janinty 6/17/2022 Kings Harris holdover affirmed "The core of petitioner's argument is that no stay is warranted because respondent is not eligible for benefits. That determination is one for OTDA, rather than for this court, to make."
PR IVC Rosemont Prop. LLC v. Jeanty 6/29/2022 Suffolk Ukeiley nonpayment affirmed "In addition, a landlord does not possess the right to dissolve the stay by refusing to accept ERAP funding and/or refusing to provide required input for the application to be completed...."
5th & 106th St. Assoc. v. Hunt 7/7/2022 New York Bacdayan holdover vacated "The evidence before the court, supports the conclusion that respondent has a stable income of $143,113 per year and has been able to afford to pay rent in the amount of $1,255.00 unfailingly during the entire COVID period."
Brisbane Leasing v. Williams 7/12/2022 Queens Ressos nonpayment vacated "Application status notes that the resp's application for ERAP has not been submitted."

Holdovers are less common than nonpayment eviction cases, making up about 19% of all new eviction cases filed in New York City so far this year, according to data compiled by the state court system.

"I think the big picture is that the big majority of cases are nonpayments, and pretty much nobody is questioning the ERAP stay in the context of a nonpay," said Edward Josephson, a supervising attorney with the Civil Law Reform Unit at the Legal Aid Society.

Margolin of Belkin Burden Goldman described a "rarer example" of getting a stay lifted in a nonpayment case in Queens this month, in Brisbane Leasing v. Williams.

In that instance, the lawyer went to the ERAP website and noticed that, though the tenant's name was in the system, the application was not fully submitted. He notified the court, and the stay was lifted.

Still, even "outlier" decisions can be cause for concern, making it more difficult for attorneys to advise tenants of their rights, said Roland Nimis, deputy director of the housing unit at Bronx Legal Services.

"The most concerning trend is where judges are stepping in, maybe referencing that the program is low on money [or] they don't think the landlord will accept it," Nimis said.

ERAP stays are important even for those who will ultimately have to move, Nimis added, because they give people time to search for a new place to live "in a more reasonable, dignified manner."

One March decision, from Judge Diane Lutwak in the Bronx, lays out a frequently cited analysis for judicial intervention in ERAP cases.

The court ruled in 2986 Briggs LLC v. Evans that while the stay language in state law seems "absolute … to find it to be so would raise doubts as to the statute's constitutionality."

According to Judge Lutwak, landlords have a due process right to challenge the stay.

The judge upheld her finding following reargument, though she noted in a follow-up decision that it does not warrant "the removal of all holdovers from the scope of the ERAP law's stay provision."

Attorneys who represent landlords say opinions such as Judge Lutwak's are welcome.

As of July 20, about $2.2 billion has been issued to New York landlords through ERAP, across 176,118 unique payments. But tens of thousands of additional applications are still pending. Among them are 8,468 submitted since June 30, which state officials say would require additional funding to fulfill.

"There has to be an opportunity to challenge the stay, otherwise there is no due process," said Riegel of Rosenberg & Estis.

For some clients, Riegel added, there's more to be gained by removing a tenant than recovering missed rent. Perhaps the relationship has soured, or the landlord doesn't want to lock in one more year at the current rate — a condition of accepting ERAP funds.

"For an owner to make a decision that he or she is going to live with a rent that was market during the pandemic, which is likely not market anymore … they may not want to take it," she said.

Across several decisions, including Judge Lutwak's from March, the court found that the ERAP stay did not apply because the applicant did not have a formal rental agreement with the landlord.

The ERAP applicant may have been a building supervisor whose term of employment has ended. In March, Judge Hannah Cohen in Brooklyn detailed a situation where the landlord alleged the applicants were squatters on their property.

Lifting the stay, Judge Cohen wrote that allowing those "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."

Margolin of Belkin Burden Goldman said some landlords have seen ERAP stays lifted after attesting that they do not intend to accept money from the program.

For example, in an April holdover decision, Judge Eleanora Ofshtein in Staten Island vacated an ERAP stay, noting that the landlord had submitted an affidavit stating that they "sought only possession of the premises."

"No explanation is provided as to why respondents believed that a rental assistance program would be helpful where rental assistance was not sought by petitioner," Judge Ofshtein wrote. "Therefore, this court finds that respondents are not covered by the ERAP statute and cannot seek the protections of its stay."

By contrast, judges have upheld ERAP stays on the basis that payment would at least partially resolve the landlord's grievance in the case.

In a June opinion, Judge Shorab Ibrahim in the Bronx upheld a stay in a nonpayment eviction case brought against a tenant with a Section 8 rental subsidy.

The landlord had argued that, under state policy, renters in public and subsidized housing are at the back of the queue for ERAP consideration.

Yet Judge Ibrahim said that "it is possible that respondent's application will be approved ... eventually" and that "even if ERAP ultimately pays nothing or just a portion of what is owed, while pending, the application stays the proceeding."

Holdover cases have not been exempt from this logic. In February, for example, Judge Jack Stoller upheld an ERAP stay in a closely watched holdover case in Brooklyn, where the landlord alleged $460,000 in missed rent payments.

In court, counsel for the landlord argued that ERAP would make a dent in the debt at best.

In his decision, Judge Stoller acknowledged "some criticism of ERAP stays, particularly when used by occupants who are licensees [without formal rental agreements] or when arrears are not an issue."

Yet he maintained that the state "designed ERAP to address the very kind of nonpayment of arrears that aggrieves petitioner in this matter, demonstrated by the statute's stay of holdover proceedings against a tenant as well as nonpayment proceedings."

Meanwhile, tenant attorneys welcomed a recent decision in a holdover case that found it is not a judge's place to tinker with an ERAP stay. In June, Judge David Harris in Brooklyn upheld a stay despite the landlord's saying they would not accept any funds.

"The core of petitioner's argument is that no stay is warranted because respondent is not eligible for benefits," Judge Harris wrote. "That determination is one for [the state's Office of Temporary and Disability Assistance], rather than for this court, to make."

Looking ahead to the coming months, Josephson of the Legal Aid Society said he's primarily concerned about landlords seeking to evict tenants after accepting ERAP funds, despite a general rule prohibiting rent increases or evictions for one year.

Under state law, landlords who accept ERAP can bring eviction cases against tenants who don't keep current with their rent.

"The problem will be, unfortunately, many people who got paid out on ERAP owe more than a year of rent, so they're not safe," Josephson said.

--Editing by Marygrace Anderson.

Update: This story has been updated with application data from the state.

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