Recitation, as required by CPLR 2219(A), of the papers considered in the review of this oral application: PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED ORDER TO SHOW CAUSE AND AFFIDAVITS & 1 AFFIRMATION ANNEXED ANSWER AFFIRMATION REPLYING AFFIRMATION EXHIBITS DECISION/ORDER Upon the foregoing cited papers, the Decision/Order of the Court is as follows: Although on default based on respondent’s failure to appear, the Court denies the motion. By Order to Show Cause, petitioner moves to restore this month-to-month lease expiration holdover proceeding to the Court’s calendar although the proceeding is statutorily stayed due to the COVID-19 pandemic The COVID-19 Emergency Eviction and Foreclosure Prevention Act (hereinafter, the “Act”) provides for a temporary stay on most tenant evictions through May 1, 2021. Similarly stayed was commencement of most new proceedings until after that date. Tenants facing financial hardship and fearing eviction can submit a declaration to their landlords swearing that they’ve fallen on hard times because of the COVID-19 related causes: loss of work or COVID-related out-of-pocket expenses like childcare, or that moving from their rental unit would pose a significant health risk to a household member because of COVID-19. The express intent of the legislation is: “to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19. As such, it is necessary to temporarily allow people impacted by COVID-19 to remain in their homes. A limited, temporary stay is necessary to protect the public health, safety and morals of the people the Legislature represents from the dangers of the COVID-19 emergency pandemic.” The Act expressly exempts a specific class of proceedings from the application of the stay. Part A, §9 of the Act provides in pertinent part: “Sections two, four, six and paragraph (ii) of subdivision a of section eight of this act shall not apply if the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others, provided: 1. If an eviction proceeding is pending on the effective date of this act, but the petitioner has not previously alleged that the tenant persistently and unreasonably engaged in such behavior, the petitioner shall be required to submit a new petition with such allegations and comply with all notice and service requirements under article 7 of the real property actions and proceedings law and this act…5. If the petitioner establishes that the tenant persistently and unreasonably engaged in such behavior or the tenant fails to provide a hardship declaration to the petitioner, petitioner’s agent or the court, the proceeding may continue pursuant to article 7 of the real property actions and proceedings law and this act.” The legislature included language in the Act to express its intent and purpose, to wit: to avoid as many evictions as possible and to allow people impacted by COVID-19 to temporarily stay in their homes. With this intent in mind, the legislature carved out a class of proceedings that could go forward despite the ongoing pandemic because of the detrimental impact the tenant’s actions might have on other tenants and occupants or that raise substantial safety concerns. The language used is “persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.” This is not a low bar but implicates the standard used by courts in traditional “nuisance” proceedings. Nuisance “imports a continuous invasion of rights — ‘a pattern of continuity or recurrence of objectionable conduct.’” Domen Holding Company v. Aranovich, 1 NY3d 117, 124 (2003). Generally, a single incident of problematic conduct will be insufficient to establish a nuisance. Lexington Ave. Props. v. Charrier, N.Y.L.J., Jan. 29, 1986, at 11, col. 4 (App. Term 1st Dep’t). The Act also provides an additional caveat: if the proceeding which is sought to be restored to the court’s calendar does not allege persistent and unreasonable behavior, the Court should not grant the relief. Instead, the petitioner is required to commence a new proceeding with service of a petition that contains allegations of persistent and unreasonable behavior that substantially impacts the rights of other tenants or occupants in the subject building or creates a substantial safety hazard to others. In sum, the Act allows the court during the stay period to restore proceedings that directly impact the health and safety of tenants and occupants. If these concerns are not apparent even if not expressly spelled-out in the petition, the Court should deny the motion to restore. The petitioner is then able to commence a proceeding that in fact raises the enumerated concerns of Part A, §9 of the Act. In support of her order to show cause, petitioner alleges that respondent is “throwing parties in the house at all times, smoking and drinking inside of the house which can be harmful to other people…The neighbors are constantly complaining about Mr. Cole, and Mr. Cole damaged my property (broken door, fridge, sink).” Petitioner argues that this behavior is tantamount to harassment and sufficiently hazardous to invoke Part A, Section 9 of the Act and allow this holdover proceeding to be restored for a trial on the merits. The facts do not support restoration of this proceeding in contravention of the statutory stay. The petition does not allege behavior which infringes on the rights of others or constitutes the kind of hazard contemplated by the statute. The conditions complained of seem to fall within the range of normal “wear and tear” which is legally permissible. In addition, the claims that respondent’s behavior has impacted the rights of the other tenants in the building are conclusory and not supported by convincing proof. Based on the foregoing, the Court hereby denies the motion to restore the proceeding the Part H Calendar. This proceeding shall remain stayed as provided by the Act and any amendments thereto. The Court shall email copies of its decision/order to petitioner’s counsel and respondent. Dated: February 1, 2021
