I. Papers The following papers were read on Petitioner’s motion for issuance and execution of warrants of eviction: Papers Numbered Petitioner’s Notice of Motion and Affirmation in Support dated November 27, 2020 (“Motion”) and file stamped by the court on December 2, 2020. 1 Respondent’s Opposition N/A II. Discussion and Decision In a notice of petition (“Petition”) filed February 26, 2020, Petitioner commenced this commercial nonpayment proceeding for premises known as Unit No. [XXX] located at [XXX] 127th Street, College Point, NY 11356 (“Premises”), to recover $150,413.01 in unpaid rent from June 1, 2019, plus interest, costs and disbursements, and a judgment of possession (RPAPL 711[2]). Respondents failed to answer the Petition (see Motion, Aff. of Chin, 6). Petitioner now moved, by the Motion, for an order issuing a warrant of eviction. Respondent did not oppose Petitioner’s Motion. On September 2, 2021, Governor Kathy Hochul signed into law 2021 NY Senate-Assembly Bill S50001-A40001 (“Act”). Among other things, the Act amended various laws enacted in response to the Covid-19 pandemic, namely the Tenant Safe Harbor Act (“TSHA”), the Covid-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”), and Covid-19 Emergency Protect Our Small Businesses Act (“CEPOSBA”, collectively with TSHA and CEEFPA, the “Prior Acts”), extended the Prior Acts’ effective dates to January 15, 2022, and combined the Prior Acts into the Act. Relevant to the issues involved in our instant case, CEPOSBA is now Part B of the Act. A. The Judgment “No commercial tenant shall be removed from the possession prior to January 15, 2022, except by an eviction proceeding” (Act, Part B, Subpart A, §2). Act, Part B, Subpart A, §5 provides: In an eviction proceeding in which an eviction warrant or judgment of possession or ejectment has not been issued, including eviction proceedings filed on or before March 7, 2020, if the tenant provides a hardship declaration to the petitioner or plaintiff, the court, or an agent of the petitioner or plaintiff or the court, the eviction proceeding shall be stayed until at least January 15, 2022… Since neither the judgment of possession nor the eviction warrant which Petitioner sought in its Motion had been issued, this non-payment proceeding before this Court would have been stayed only if Respondent were to provide a hardship declaration (see Act, Part B, Subpart A, §5). The court has not received Respondent’s hardship declaration. Neither has Petitioner advised this Court that Respondent provided such hardship declaration to Petitioner. Therefore, the proceeding here is not stayed. At the outset, this Court notes that the Petitioner presented a supplemental affidavit sworn December 29, 2020, in which Mendoza (“Mendoza Affidavit”), a maintenance engineer of the building where the Premises are located, attested that he observed agents of Respondent removing personal belongings from the Premises on March 1, 14, and 19, 2020. When a tenant abandons leased premises prior to lease expiration, the landlord could 1) do nothing and continue collecting rent due under the lease, 2) accept tenant’s surrender, reenter the premises, relet them for its own benefit, and release tenant from further rent liability, or 3) notify tenant it will enter and relet the premises for tenant’s benefit (Holy Props. v. Cole Prods., 87 NY2d 130, 133-34 [1995]; REP A8 LLC, Aventura Tech., Inc., 68 AD3d 1087, 1089 [2d Dept 2009]). Under the third option, the landlord would first apply the rent collected to its own expenses and then tenant’s rent obligation thereafter (Holy Props. v. Cole Prods., 87 NY3d at 134). “Ordinarily, surrender of the lease is accomplished by the vacating of the premises and return of the keys to the landlord” (Starrett City, Inc. v. Smith, 25 Misc 3d 42, 45 [App Term 2d Dept 2009]). In our instant matter, Petitioner specifically denied receiving the keys from Respondent (see Motion, Chin Aff. 10), so Respondent has not surrendered the Premises. “A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated” (Riverside Research Inst. v. KMGA, Inc., 68 NY2d 689, 691-92 [1986]; Chestnut Realty Corp. v. Kaminsky, 132 AD3d 797, 797 [2d Dept 2015]; Ford Coyle Props., Inc. v. 3029 Ave. v. Realty, LLC, 63 AD3d 782, 782 [2d Dept 2009], see Solomon v. Ness, 118 AD3d 773, 774 [2d Dept 2014]). Here, Petitioner has done nothing inconsistent with the landlord-tenant relationship. There is no indication that the lease is not in force. Under the circumstances, Petitioner was required to proceed against Respondent under RPAPL 711 (see Visutton Assoc. v. Fastman, 44 Misc 3d 56, 58 [App Term 2d Dept 2014]). If Petitioner proceeds under RPAPL 711, “the special proceeding prescribed by this article shall be commenced by petition and a notice of petition. A notice of petition may be issued only by an attorney, judge or clerk of the court; it may not be issued by a party prosecuting the proceeding in person” (RPAPL 731[1]). Here, Petitioner, as owner and landlord of the Premises (see Petition at 1), is a proper party to bring this nonpayment proceeding (RPAPL 721[1]) and to seek a judgment of possession. Since the Petition was properly verified by a member of Petitioner’s board of managers and stated the parties’ interest in the Premises, the parties’ relationship to each other, “describe[d] the [P]remises,” and “[s]tate[d] the facts upon which the proceeding [was] based” and the “relief sought,” it satisfied statutory requirements for the Petition’s contents (RPAPL 741). In addition, on March 4, 2020, Petitioner properly served the Petition upon Respondent by conspicuous affixation of the Petition with the required additional mailings (RPAPL 735[1][b]). Since Respondent failed to answer the Petition, the court must “render judgment in favor of the [P]etitioner” at the motion of Petitioner “and may stay the issuance of the warrant for a period of not to exceed ten days from the date of service…” (RPAPL 732[3], see Matter of Brusco v. Braun, 84 NY2d 674, 681 [1994]). Finally, pertaining to residential evictions, Act, Part C, Subpart A, §5 provides that “[n]o court shall issue a judgment in any proceeding authorizing a warrant of eviction against a respondent who has defaulted, or authorize the enforcement of an eviction pursuant to a default judgment, prior to January 15, 2022, without first holding a hearing after the effective date of this [A]ct upon motion of the petitioner.” Since the Act contains no such provision relating to the commercial eviction in this case, this Court need not conduct a hearing before issuing judgment in this matter. It is noted, however, that the Motion was on court’s calendar four (4) separate times before the Motion was submitted without opposition. In addition, CPLR 3215[g] does “not apply to…any summary proceeding to recover possession of real property…” (CPLR 3215[g][3][iii]). B. The Warrant of Eviction “Upon rendering a final judgment for petitioner, the court shall issue a warrant directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated,…stating the earliest date upon which execution may occur pursuant to the order of the court, and commanding the officer to remove all persons named in the proceeding…” (RPAPL 749[1]; Matter of Menella v. Lopez-Torres, 91 NY2d 474, 479 [1998]). Part B, Subpart A, §6[3] of the Act provides: No court shall issue a warrant or execution directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated, or, if it is not situated in a city, to any constable of any town in the county, that does not comply with the requirements of this section. In pertinent part, Part B, Subpart A, §6[2] of the Act provides: [A]ny warrant or execution issued shall not be effective as against the occupants, unless, in addition to other requirements under law, such warrant or execution states: [a] [t]he tenant has not submitted the hardship declaration and the tenant was properly served with a copy of the hardship declaration pursuant to this section, listing dates the tenant was served with the hardship declaration by the petitioner or plaintiff and the court; or [b] [t]he tenant is ineligible for a stay under this act because the court has found that 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, with a specific description of the behavior. Officers to whom a warrant or execution is directed are prohibited from executing a warrant that does not comply with this section (see Act, Part B, Subpart A, §6[4]). Here, the Motion did not allege that Respondent engaged in conduct infringing on other tenants’ use and enjoyment or causing a hazard to others. In addition, the Mendoza Affidavit, which indicated that Respondent had vacated the premises, demonstrated that Act, Part B, Subpart A, §6[2][b] would not apply. In order for this Court to issue an effective warrant that officers could permissibly execute under the Act, the warrant must state when Petitioner served Respondent with a form of hardship declaration and that Respondent has not submitted a hardship declaration (Act, Part B, Subpart A, §6[2][a]). Since Petitioner filed the Petition and the instant Motion before the effective date of the Act, Petitioner could not have known to serve Respondent with a copy of the hardship declaration, to document when such service took place, or to advise the court that Respondent had not submitted a hardship declaration. As addressed above, the court must issue a judgment of possession in Petitioner’s favor upon Petitioner’s Motion, and based upon the judgment, must issue a warrant. This Court believes that the intersection of the RPAPL and the Act in this case constitute “particularized circumstances in an individual case, where, upon a showing of good cause, the court [has] the authority to stay execution of a warrant of eviction” which the Court of Appeals envisioned in Matter of Menella v. Lopez-Torres (91 NY2d at 479). To comply with the Act, the court must also delay issuance of the warrant to allow Petitioner time to serve the form of hardship declaration upon Respondent, to advise the court of the dates the hardship declaration was served upon Respondent, and that Respondent has not submitted a hardship declaration. To summarize, this Court must award Petitioner a final judgment of possession. Although the Petition also sought a money judgment for all rent, common charges, late fees, and violations, Petitioner was willing to waive all arrears if Respondents did not oppose issuance of the warrant pursuant to the Motion (see Motion, Chin Aff.
