Upon the foregoing papers, the motions and cross-motion as enumerated in the accompanying short-form order are decided as follows. This is a tax lien foreclosure action concerning premises located at 881 Cauldwell Avenue in Bronx County (the “subject property”). Following judgment in this action, the subject property was sold at public auction on January 7, 2019 to non-parties Fausto J. Mora and Manuel H. Sinchi (collectively, “owners” or “movants”). The owners describe the property as a two-unit residential building. In Motion Sequence No. 8, the owners move pursuant to Real Property Actions and Proceedings Law (“RPAPL”) §221 granting a writ of assistance compelling delivery of possession of Apartment No.1 at the subject property. The owners argue that the occupants of Apartment 1 were named and served as “John Doe” defendants in the tax lien action; that they were served with a copy of the judgment of foreclosure and sale; that the judgment provided that “each and all of the defendants in this action, and all persons claiming under any of them after the filing of such Notice of Pendency of this action, be and they are hereby forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption in the said liened premises and each and every part thereof ;” and, that they were duly apprised of the sale of the property. The movants contend that under these circumstances they are entitled to possession, and thus to a writ of assistance. In opposition to Motion Sequence No. 8, defendants Norma Miner and Jeffrey Miner, Sr. (herein, collectively, “defendants”), admit that they are the tenants of Apartment 1, where they currently live with their son Jeffrey Miner, Jr., also named as a defendant in this action, and their minor daughter. Defendant Norma Miner alleges that she has lived at the apartment presently in question for approximately 20 years, and that the last written lease having expired approximately 13 years ago. The defendants contend that the subject property 881 Cauldwell Avenue shares an adjoining wall with 879 Cauldwell Avenue. Although both properties have separate entrances, their heating systems and hot water are connected to a common boiler room located in the basement of 879 Cauldwell Avenue. Defendants argue that the premises are subject to rent stabilization as a horizontal multiple dwelling, and that the judgment states that the sale was made “subject to any rights of tenants or persons in possession of the subject premises.” Defendants cross-move to staying the issuance of any writ of assistance, and the enforcement and/or execution of any judgment, against the defendants pursuant to Executive Order 202.66 of the Governor of the State of New York.1 Executive Order 202.66, “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency,” issued September 29, 2020. Executive Order 202.66 refers to Chapter 127 of the Laws of 2020, the “Tenant Safe Harbor Act,” effective June 30, 2020, which provides, in part, that: “No 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 for the non-payment of rent that accrues or becomes due during the COVID-19 covered period.” The Executive Order extends and amends Chapter 127 to the extent necessary to prevent the eviction of any residential tenant suffering financial hardship during the COVID-19 state disaster emergency. In the alternative, defendants seek equitable relief. In Motion Sequence No. 9, the owners seek use and occupancy at the rate of $2,500.00 per month for the month of January 2021, and on the first day of each month thereafter, pendente lite and without prejudice to all of Landlords’ rights and remedies to seek a higher amount, and without creating any landlord-tenant relationship; further, the owners seek use and occupancy from March 1, 2020 to December 31, 2020, totaling $25,000.00. In opposition, the defendants raise issues concerning their financial hardships, HPD violations, and the regulatory status of the apartment. In addition, they argue that this action is stayed under “COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020″ (“CEEFPA”) (L 2020, Ch 381), and the Administrative Orders implementing its provisions. Defendants argue that this action is stayed under Administrative Order AO/340/20, implementing the CEEFPA with regard to eviction proceedings, which provides that “[a]ny residential eviction proceeding pending on December 28, 2020, including eviction proceedings filed on or before March 7, 2020,…shall be stayed for sixty days.” Further, they argue that Administrative Order AO/341/20, implementing the CEEFPA with regard to residential foreclosure actions stays this action. Administrative Order AO/341/20, provides that “[a]ny action to foreclose a mortgage relating to residential real property as defined in the [CEEFPA], pending on December 28, 2020,…shall be stayed for sixty days.” Discussion The defendants’ cross motion is rendered academic by the passage of CEEPFA. Accordingly, as a threshold matter, this Court must determine if the present action is stayed, either because the present action constitutes a foreclosure proceeding or an eviction within the meaning of CEEPFA. This Court does not find that the present applications seeking a writ of assistance, and use and occupancy, constitute a foreclosure action for the purposes of CEEPFA. CEEPFA specifically applies to tax lien proceedings. (Part B, Subpart B, §1.) However, the hardship declaration set forth in that section applies only to the owner of the property. It does not appear that any post-foreclosure proceedings, as such, are subject to any stay under CEEPFA. With respect to foreclosures generally, the CEEPFA does not provide for any type of stay following the execution of judgment, i.e., the sale. (Part B, Subpart A, §8.) Consequently, even if CEEPFA encompasses this type of post-tax lien sale, by its terms, no stay is provided. With respect to evictions, CEEPFA defines an “eviction proceeding” as “a summary proceeding to recover possession of real property under article seven of the real property actions and proceedings law relating to a residential dwelling unit or any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit.” Part A, §8(a)(ii) of the Act further provides that, “In any eviction proceeding, if the tenant provides a hardship declaration to the petitioner, the court, or an agent of the petitioner or the court, prior to the execution of the warrant, the execution shall be stayed until at least May 1, 2021. If such hardship declaration is provided to the petitioner or agent of the petitioner, such petitioner or agent shall promptly file it with the court, advising the court in writing the index number of all relevant cases.” Such a hardship declaration has been filed in this case, with the defendant tenant Norma Minor alleging both financial hardship and significant health risk. (See NYSCEF Doc. No. 198.) The scope of the “CEEFPA” with respect to evictions outside of the context of summary proceedings has already been considered in one reported decision. In Jacob Cram Coop., Inc. v. Ziolkowski, (2021 NY Misc. LEXIS 246, 2021 NY Slip Op 30174(U) [Sup Ct, NY Co] [Debra A. James, JSC]), the court considered the application of the CEEFPA in the context of an ejectment action pursuant to RPAPL Art. 6 pending in Supreme Court. The Court concluded that an action for ejectment pending in Supreme Court is subject to and governed by CEEFPA. The Court reasoned: “Plaintiff argues that the Act does not apply here because throughout the relevant sections of the Act only ‘proceedings’ are referenced, not actions, and plaintiff therefore argues that the clear legislative intent was only to apply to evictions related to summary proceedings governed by Article 7 of the RPAPL, and to exclude plenary actions for ejectment. Plaintiff further asserts that the CPLR makes clear delineations between actions and proceedings and the procedures applicable to one are not applicable to the other. Defendant, now currently represented at the time of the hardship filing, argues that the plain meaning of the statute applies to this case. “The court agrees with defendant that in spite of the failure of the Legislature to specifically use the term “action” as applied to landlord-tenant disputes, the term “eviction proceeding” as defined therein includes New York’s current hybrid common law/statutory (RPAPL Art. 6) actions for ejectment as applied to residential tenancies. Plaintiff’s interpretation limiting the applicability of the statute is contrary to the Act’s definition of “eviction proceeding” as including “any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit.” Other than a plenary action for ejectment, the court is unable to discern any other “proceeding” that the legislature could have intended ” Finally, if the Legislature intended the Act to apply to summary proceedings only, it would have stated that clearly without the need to create and define a new and broadened term of ‘eviction proceedings.’” (Jacob Cram Coop., Inc. v. Ziolkowski, supra, 2021 NY Misc. LEXIS 246, *2-4.) This Court agrees with the foregoing. The statement of legislative intent shows that the applicability of CEEFPA is to be broadly construed. The Legislature has stated that: “COVID-19 presents a historic threat to public health. Hundreds of thousands of residents are facing eviction or foreclosure due to necessary disease control measures that closed businesses and schools, and triggered mass-unemployment across the state: The pandemic has further interrupted court operations, the availability of counsel, the ability for parties to pay for counsel, and the ability to safely commute and enter a courtroom, settlement conference and the like. “Stabilizing the housing situation for tenants, landlords, and homeowners is to the mutual benefit of all New Yorkers and will help the state address the pandemic, protect public health, and set the stage for recovery. It is, therefore, the intent of this legislation 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.” (L. 2020, Ch. 381, Sec. 3). The Court in Jacob Cram Coop., Inc. noted that CEEFPA contains a broad definition of eviction, ranging beyond summary proceedings under the RPAPL. This Court would add that the definition of “landlord” under the CEEFPA is similarly broad, and “includes a landlord, owner of a residential property and any other person with a legal right to pursue eviction, possessory action or a money judgment for rent, including arrears, owed or that becomes due during the COVID-19 covered period…” (CEEFPA, Part A, §1(2).) This definition clearly encompasses a purchaser at a tax lien foreclosure sale as an “owner [or] person with a legal right to pursue [a] possessory action.” Because the defendant tenant has alleged both financial hardship, as well as significant health risk, the action is stayed at least until May 1, 2021.2 Other courts have noted that an allegation of significant health risk cannot be contested. The defendants dispute whether the premises are subject to rent stabilization, and further, there are contested issues as to the condition of the premises and the existence of rent-impairing violations. Under these circumstances, use and occupancy pendente lite cannot be awarded without conducting a hearing. (See, e.g., Trump CPS LLP v. Meyer, 249 AD2d 22, 670 NYS2d 854 [1st Dept. 1998] [ordering a hearing to determine reasonable value of use and occupancy where the parties disputed the appropriate amount]; Mushlam, Inc. v. Nazor, 80 AD3d 471, 473, 916 N.Y.S.2d 25, 27-28 [1st Dept. 2020].) Because the action is stayed, no hearing can be conducted and no final determination can be made as to entitlement or amount of use and occupancy, if any. Despite the foregoing, because the parties arguments concerned primarily the application of the CEEFPA, and no other issues relating to the statute, the foregoing is without prejudice to any appropriate application, by motion or otherwise, under CEEFPA. Accordingly, it is hereby, ORDERED that the action is stayed until May 1, 2021, or to such other date as the court may order upon further application. This is the Decision and Order of the Court. Dated: February 5, 2021
