Recitation, as required by CPLR §2219(a), of the papers considered in the review of the motion by Respondents Meny Yoshevayev and Sara Nisanov to stay this proceeding pursuant to Part A, Section 6 of the COVID-19 Emergency Eviction and Foreclosure Prevention Act: Papers Numbered Notice of Motion & Affidavits/Exhibits Annexed 1 Affirmation in Opposition & Affidavit/Exhibits Annexed 2 Affidavit in Reply 3 DECISION/ORDER Upon the foregoing cited papers, the decision and order on Respondents’ motion to stay this proceeding is as follows. RESPONDENTS’ MOTION Respondents1 seek to stay this holdover proceeding pursuant to Part A, Section 6 of the COVID-19 Emergency Eviction and Foreclosure Prevention Act [L 2020, ch 381] (hereinafter “EEFPA”), upon the filing of a hardship declaration by Meny Yoshevayev. This proceeding, which was filed in February 2020 and first appeared on the court’s calendar on March 24, 2020, was restored to the Housing Motion Part (HMP) on February 18, 2021 because the petition included allegations suggesting nuisance-type conduct corresponding to the exception to the stay of eviction proceedings set out in Part A, Section 9 of the EEFPA.2 At the February 18, 2021 court date, Respondents were referred to Queens Legal Services (QLS) for representation. Subsequently, QLS appeared and filed this motion, which asserts that because Mr. Yoshevayev has submitted a hardship declaration in accordance with the EEFPA, the proceeding should be stayed to May 1, 2021 pursuant to Part A, Section 6 of the same law. Respondents’ motion also argues that the exception to the stay contained in Part A, Section 9 does not apply because Petitioner has not established that Respondents are “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,” which is the standard that must be met for the exception to apply. Petitioner opposes the motion, arguing that the nuisance-type behavior referenced in Part A, Section 9 exists and that the exception therefore applies. Petitioner’s managing agent, Thomas Krahn, states in an affidavit that Respondents brought discarded items from the street into the subject premises, which created a bedbug condition, in or about June 2016, October 2016, August 2018, and October 2019 (Krahn Affidavit, 5). In the following paragraph of the affidavit, Mr. Krahn states that this conduct “has substantially infringed on the use and enjoyment of other tenants or occupants and is causing substantial safety hazards them [sic].” (Krahn Affidavit, 6). ANALYSIS Part A, Section 6 of the EEFPA states that “[i]n any eviction proceeding in which an eviction warrant has not been issued, including eviction proceedings filed on or before March 7, 2020, if the tenant provides a hardship declaration to the petitioner, the court, or an agent of the petitioner or the court, the eviction proceeding shall be stayed until at least May 1, 2021.” It is undisputed here that a hardship declaration has been submitted and no judgment or warrant has issued. Therefore, the only matter in dispute is whether the exception to the stay codified in Part A, Section 9 of the EEFPA applies. For proceedings where a judgment was granted prior to the effective date of the EEFPA (December 28, 2020) on the basis of objectionable or nuisance behavior, Part A, Section 9(2) sets forth a straightforward mechanism for resolving disputes regarding the applicability of the stay: “the court shall hold a hearing to determine whether the tenant is continuing to persist in engaging in unreasonable behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.” See 2857 Sedgwick Ave. LLC v. Drummond, 2021 NY Slip Op 21056 [Civ Ct, Bronx County 2021]. For pre-judgment cases, however, the statute is not as clear as to the means by which the court should determine whether the exception to the stay should apply. Part A, Section 9(3) states that “a mere allegation of the behavior by the petitioner or an agent of the petitioner alleging such behavior shall not be sufficient evidence to establish that the tenant has engaged in such behavior.” Part A, Section 9(4) then provides that “[i]f the petitioner fails to establish that the tenant persistently and unreasonably engaged in such behavior and the tenant provides or has provided a hardship declaration to the petitioner, petitioner’s agent or the court, the court shall stay or continue to stay any further proceedings until at least May 1, 2021.” Therefore, the court reads these subsections together to mean that allegations alone are insufficient to demonstrate an exception to the stay but that a hearing is not necessarily required to “establish” the exception (i.e. summary judgment-type evidence may be submitted). See e.g. Matter of Walsh v. New York State Comptroller, 34 NY3d 520, 524 [2019] ["A statute 'must be construed as a whole and [] its various sections must be considered together and with reference to each other.’”] [Quoting Matter of New York County Lawyers' Assn. v. Bloomberg, 19 NY3d 712, 721 [2012]]. However, where evidence is submitted and disputed issues of fact exist, a hearing would nonetheless be necessary to resolve those disputed issues of fact. Here, the affidavit submitted by Petitioner fails to raise an issue of fact as to the applicability of the exception to the stay set out in Part A, Section 9 of the EEFPA. Mr. Krahn’s affidavit references behavior that most recently occurred in October 2019. Although the affidavit goes on to state that Respondents’ behavior “has substantially infringed on the use and enjoyment of other tenants or occupants in the building and is causing substantial safety hazards,” these allegations are conclusory and unsupported by any details. The language of Part A, Section 9 includes a present participle (“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” [emphasis added]) that plainly connotes ongoing activity. Therefore, since Petitioner has not come forth with nonconclusory evidence to raise an issue of fact as to whether Respondents are persistently and unreasonably “engaging” in the nuisance-type conduct described in Part A, Section 9, the proceeding must be stayed through May 1, 2021 in accordance with Part A, Section 6 of the EEFPA. See e.g. Cg-N Affordable LLC v. Bolshakov, 2021 NYLJ LEXIS 202, *5 [Civ Ct, NY County, March 4, 2021, Index No. L&T 75795/18]. CONCLUSION Respondents’ motion to stay the proceeding through May 1, 2021 is granted. The court stresses that the determination made herein only addresses the applicability of the EEFPA stay/exception provisions and does not go to the ultimate merits. The proceeding will be restored to the Part E calendar on a date after May 1, 2021.3 Counsel for the parties will receive notification of the restored date by email. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: April 9, 2021
