Recitation, as required by CPLR 2219(a), of the papers considered in review of the Petitioner’s application Papers Numbered Filed Papers 1-7 DECISION AND ORDER Background and Procedural Posture The parties entered into a lease agreement on August 1, 2018. The terms of the lease provided for the Respondent’s receipt of monthly assistance payment from the Department of Housing and Urban Development (“HUD”) under the Federal Low Income Tax Credit Program. Participation in the program requires tenants to submit annual re-certifications. The amount of assistance is based on the income calculations made during the recertification. Respondents were served with a Ten-Day Notice to Cure on or about March 16, 2020. Petitioner alleged that Respondents failed or refused to re-certify which violated the Rules and Regulations of the Federal Low Income Housing Tax Credit Program and was a material non-compliance with their Lease Agreement. The notice alleged that the Respondents were previously notified to submit their re-certifications on May 1, 2019, June 1, 2019, July 1, 2019 and November 21, 2019. Petitioner served a Ten-Day Notice to Terminate on the Respondents on August 18, 2021 before filing the above-entitled holdover proceeding on November 12, 2020 seeking possession and $22,977. Respondents appeared on the return date and the matter was adjourned for a hearing on March 9, 2021. Respondents filed a Declaration of Hardship on February 17, 2021 and thereafter failed to appear on the remaining court dates, March 9, 2021 and March 31, 2021 despite Petitioner serving Respondents notice of same. The Petitioner was advised on March 31, 2021 of the Hardship Declaration and sought a hearing to rebut the hardship. The hearing was conducted on June 23, 2021. Respondents failed to appear. Rosa Rodriguez testified on behalf of the Petitioner. She stated she is the property manager for the past ten years. Her responsibilities include the daily management of the premises, maintenance of rent ledgers and recertifications. Ms. Rodriguez stated that despite numerous notices to Respondents, they failed to recertify pursuant to their lease agreement. She alleged that as of the time of the hearing, Respondents owed $37,306. At the conclusion of the hearing the Petitioner was directed to submit a memorandum of law on notice to Respondents. Petitioner filed same on July 14, 2021 and the matter was marked fully submitted. The issue presented in the memo is whether the Respondents’ Declaration of Hardship should be struck by the Court pursuant to Section 11 of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”) for their inability to demonstrate a financial hardship due to COVID-19 by a preponderance of the evidence. Petitioner sought an Order striking the Declaration of Hardship and restoring the matter to the calendar as the Respondents failed to carry their burden of proof or establish the existence of a financial hardship suffered during the covered time that would prevent them from tendering the monthly rent to the Petitioner. Petitioner states that for the purpose of rebutting the presumption created by Sec 11 of CEEFPA, the Court should infer from the complete lack of payments from March 2019 that if the Respondents did, in fact, suffer a financial hardship, it occurred prior to March 7, 2020 and did not stem from COVID-19. For the reasons which follow, the Petitioner’s motion is denied in part and granted in part. Relevant Law and Its Application Petitioner’s motion to strike the Respondents Hardship Declaration is denied. A party may move to strike a pleading under CPLR §3024 on the grounds that the pleading is “so vague or ambiguous that a party cannot reasonably be required to frame a response….” (CPLR §3024(a)) or on the grounds that the pleading is “scandalous or prejudicial….” (CPLR §3024(b)). CPLR §3024(c) provides that a motion for this relief must be served within twenty days after service of the pleading sought to be challenged. Pleadings are defined generally as a claim and a response to the claim. See, CPLR §3011, CPLR §402. A pleading may also consist of a complaint, answer, cross claim, interpleader, third party complaint and reply. No other pleadings are permitted under the CPLR unless authorized by the Court. Historically these additional pleadings consist of a reply or sur-reply. The Court does not find support for deeming the hardship a pleading under the new legislation. The Tenant Safe Harbor Act (“TSHA”) codified hardship as a defense and not a pleading, (see L. 2020 ch. 127 § 2 [a]). CEEFPA defines a hardship declaration in Part A, paragraph 4 as a “statement.” As such, to the extent the Petitioner sought to strike the declaration as a pleading, this branch is denied. Assuming Petitioner’s motion sought to strike the declaration as an affirmative defense, this is also denied as there are issues of fact precluding the grant of this relief. Petitioner argued that the financial obligations were incurred prior to March 7, 2020. However, the petition, filed November 2020 clearly includes rents through and including that date. Furthermore, and notwithstanding the foregoing, the defense of financial hardship requires a showing of Respondents financial circumstances. The only evidence before the Court supporting the hardship allegedly faced by Respondents is the Hardship Declaration. The Court declines to conclude that the Respondents failure to re-certify, in and of itself, means they have not suffered a financial hardship due to the pandemic. Finally, that branch of Petitioner’s motion to restore the matter to the calendar is granted. CEEFPA imposes an automatic stay of the issuance of a judgment and warrant upon the filing of a Hardship Declaration. However, the stay is not absolute and does not absolve a Respondent from their requirement to appear in court proceedings. CEEFPA Part A §7 provides that a default judgment may be entered prior to August 31, 2021, the expiration of the moratorium, on motion of the Petitioner and on notice to the Respondent. The Court is aware of Respondents’ failure to appear for the last four court dates. However, as Petitioner’s application and the Court’s decision must be limited to the relief sought. That relief did not include entry of a default judgment. The matter will appear on the Court’s calendar for conference in Part IV on October 19, 2021 at 10:00 A.M. Appearances are required. Dated and Entered: August 9, 2021
