Recitation pursuant to CPLR §2219(a) of the papers considered in the review of Petitioner’s oral application for relief Notice of Petition and Petition 1, 5 Substitution of Counsel 2 Tenant Declaration of Hardship 3,6 Correspondence 4-5, 7-11 Decision and Order 7/30/21 12 DECISION AND ORDER Petitioner obtained a judgment after inquest on the record on July 1, 2021. The Court, by Decision and Order dated July 30, 2021, vacated the judgment finding that the court overlooked the Respondent’s hardship declaration1 which was filed on March 3, 2021. The Decision also restored the matter to the calendar for a hearing. At the hearing, Respondent, Tammy Brennan requested an adjournment to seek legal counsel, alleging warranty of habitability claims. Petitioner objected, noting Respondent’s failure to appear on all prior court dates and requested a nuisance hearing on the grounds that Respondents were violating building codes and threatening tenants in the building. Following a review of the above-entitled files, this Court denied the Petitioner’s oral application on the grounds that the petitions were devoid of any allegations that Respondents persistently and unreasonably engaged in behavior that substantially infringed on other tenant’s use and enjoyment or caused a substantial safety hazard to others. Petitioner insisted that either a new or amended petition was filed with the court and demanded a hearing. After an exchange, Petitioner sought in the alternative, to file an amended petition with the court that very day. The Court denied this application. The Petitioner’s application for a written decision was granted. The two summary proceedings are consolidated for purposes of this Decision. Procedural Background On July 1, 2020, Petitioner filed a holdover proceeding (LT 0955-20) alleging Respondents failed to vacate at the expiration of their term. Following several adjournments in which Respondents failed to appear, the matter was scheduled for a default hearing on October 14, 2021. On December 21, 2020 Petitioner commenced a nonpayment proceeding (LT 1964-20) seeking to recover arrears from February 2020 through November 2020 in the sum of $16,000. Following Respondents failure to appear on May 11, 2021 the matter was adjourned for inquest on July 1, 2021. At inquest Petitioner provided the Court with a copy of the notice of the inquest sent to Respondents, an Affidavit indicating Petitioner had not received a hardship declaration from Respondents and a tenant ledger reflecting an outstanding balance of $27,200.2 Following the inquest, the Court granted a judgment for Petitioner. Upon a subsequent review of the file, the Court discovered that Respondent filed a hardship declaration and vacated the default and restored the matter for a hearing. The Clerk’s office advanced the nonpayment proceeding (LT 1964-20) to be heard in conjunction with the holdover (LT 955-20). Argument Petitioner raised two arguments. First, Petitioner alleged that a new or amended petition was filed and misplaced by court staff. Second Petitioner argued he is entitled to file an amended petition forthwith. Petitioner maintains the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”) does not require Petitioner to commence a new proceeding, rather Petitioner may file a new or amended petition. Respondents did not offer arguments in this regard. Applicable Law In response to the global COVID-19 pandemic, a series of eviction moratoriums issued. These included Administrative Orders by the Chief Administrative Judge of the Courts Lawrence Marks, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Executive Orders by former Governor Andrew Cuomo, the Center for Disease Control (“CDC”) Moratorium and Chapter 127 of the Laws of New York (“Tenant Safe Harbor Act”). On December 28, 2020, the New York State Legislature enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”) to temporarily permit those impacted by the COVID-19 pandemic to remain in their homes. The Legislative intent was to provide a “[l]imited, temporary stay [] to protect the public health, safety and morals of the people the Legislature represents from the dangers of the COVID-19 emergency pandemic.” 2020 Chapter 381 of the Laws of New York. In furtherance of the intent, the Legislature included a provision for an automatic stay of an eviction proceeding upon the filing of a hardship declaration. Petitions which alleged a nuisance that “the tenant [was] 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”. Act, Part A §9. The act further provided: “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 shall comply with all notice and service requirements under article 7 of the real property actions and proceedings law and this act.” Act, Part A, §9(1). The “notice and service requirements” contained in the legislation include service of a hardship declaration with “[a]ny other written notice…and with every notice of petition served on a tenant.” (Act, Part A, §2), an affidavit of service demonstrating the method of the service of the hardship and affidavit attesting to whether Petitioner or their agents received a hardship declaration from the Respondent. Act, Part A, §3. Under CEEFPA as originally drafted, a tenant needed only to file a hardship declaration under penalty of perjury alleging that the tenant was suffering a financial hardship related to the COVID-19 pandemic. The filing of this document upon the Petitioner, the court or an agent of the Petitioner or the court resulted in an automatic stay of the proceedings. Following the Court’s decision in Chrysafis v. Marks, 141 S.Ct. 2482 (2021), and the court’s holding that the CEEFPA provisions precluded landlords from contesting a hardship declaration violated the Due Process Clause, the automatic stay language was modified to permit challenges to the stay. The amended legislation issued September 2, 2021, extends the moratorium with the filing of a hardship until January 15, 2022. In addition, the legislation provides that the court must conduct a hearing on the validity of the hardship upon a petitioner’s motion alleging a good faith belief the Respondent is not suffering a hardship. Act, Part A, §10. If, after the hearing, the court finds the hardship invalid, the proceedings continue to a determination on the merits. Otherwise, the hardship stay remains in effect. Id. The nuisance exception to the moratorium remained largely the same. Now in §7 of the Act, the stay does not apply if a proceeding pending on the effective date of the act alleged that the tenant “(i)intentionally caused significant damage to the property; or (ii) 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.” Act, Part A, §7. If, however, a petition was pending and said petition did not previously allege the tenant was a nuisance, “[t]he 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.” Act, Part A. §7(1). The notice and service requirements within CEEFPA include pre-eviction notices as required and defined in §2 of the Act, an affidavit of service of the hardship declaration as defined in §3 “RPAPL article 7 sets forth the jurisdictional and procedural requirements for summary proceedings to recover possession of real property.” Brusco v. Braun, 84 N.Y. 2d 674, 679 (1994). Article 7 is titled “Jurisdiction; courts; venue” and sets forth definitions and procedures for the commencement and disposition of a summary proceeding. The article defines a landlord-tenant relationship, sets forth the grounds for an illegal occupancy, identifies parties who may maintain a proceeding, sets forth the method of commencement of a proceeding, and service thereof. The judgment and warrant requirements are also contained therein, and post judgment relief is also addressed. Regarding amendments of pleadings, CPLR §3025(b) provides that leave is to be freely given, absent prejudice to the opposing party. See, Edenwald Contracting Co v. New York, 60 N.Y. 2d 957 (1983). This applies to summary proceedings including holdover proceedings under Article 7 of the RPAPL. See, e.g. 289 & 305 Assocs., LP v. Loman, 50 Misc.3d 141 [A[(app,. Term 1st Dep't 2016); Coalition Houses LP v. Bonano, 12 Misc.3d 146 [A](1st Dept, 2006). Unless the pleading is completely devoid of merit, in the absence of prejudice, it is an abuse of discretion for a court to deny a party leave to amend a pleading, even during a trial. Delta Dallas Alpha Corp. v, South St Seaport LP, 127 AD 3d 419 (1st Dept 2015). However, a predicate notice may not be amended. Chinatown Apts. Inv. V. Chu Cho Lam, 51 N.Y. 2d 786 (1980). Discussion The Court has reviewed the above-entitled files, neither of which contain a petition with any allegations of nuisance. Petitioner set forth two arguments, which the Court will address separately below. The “Missing” Petition Petitioner’s first contention is that a new or amended petition was filed and misplaced or lost by court personnel. The Court notes Petitioner’s emotional pleas during the hearing and is cognizant of the frustration Petitioner must feel. “The invention of the summary proceeding was designed to provide the landlord with a simple, expeditious and inexpensive means of regaining possession of his premises in cases where the tenant refused upon demand to pay rent, or where he wrongfully held over without permission after the expiration of the term.” New York University v. Farkas, 121 Misc.2d 643 (Civ. Ct. N.Y. Co. 1983). The Executive and Administrative Orders, state and federal legislation stemming from the pandemic which apply exclusively to landlord tenant proceedings and foreclosures have delayed the otherwise summary nature of these proceedings, in some cases for well over one year. The moratoriums also limit the court’s ability to address these issues. In the interest of justice and despite Petitioner’s complete lack of any documentation in support3, the Court reviewed the paper and electronic files including the Electronic Document Delivery System (EDDS) filings as well as the recordings of the proceedings. Petitioner’s counsel recited his recollection of handing up a copy of the nuisance petition on the record. No record of this transaction is offered in support. The original proceeding (LT 955-20) appeared on the court’s calendar five (5) times: July 21, 2020, August 28, 2020 and October 6, 2020. Respondent failed to appear on each of these occasions. The matter was scheduled for January 5, 2021 without appearances and rescheduled to October 14, 2021. Petitioner’s prior counsel appeared on July 21, 2020 and October 6, 2020. Petitioner then filed a substitution of counsel on October 26, 2020. Petitioner’s present counsel’s first and only appearance on this matter was on October 14, 2021. The record is clear that no amended petition was filed in court on this date. The nonpayment proceeding (LT 1964-20) first appeared on May 11, 2021. Counsel appeared on this matter from the onset of the case and his first appearance, May 11, 2021, was conducted virtually through Microsoft Teams. Following Respondent’s default on that date, the Court scheduled the matter for an inquest on July 1, 2021. Respondents failed to appear at the inquest and a judgment was rendered. Nothing on the brief recording of the inquest referred to a nuisance and Petitioner certainly did not hand up an amended or new petition to the Court on either the May 11, 2021 virtual proceeding or at the inquest in July. The Court adds that the staff in this courthouse have, despite being overwhelmed and understaffed, worked diligently during the global pandemic. They have expeditiously processed filings, deciphered ever changing executive and administrative orders and demonstrated their commitment to justice during extremely challenging circumstances. Contrary to Petitioner’s insistence, his claims of filing an amended or new petition are unsupported by the record before the Court. There is no stamped copy of a petition, no electronic confirmation nor an affidavit of service offered by Petitioner in support of these contentions. As such, this Court concludes that no petition was filed. New or Amended Proceeding As no nuisance petition was filed, the Court turns to whether Petitioner is permitted to file an amended petition or if a new proceeding is required. Following counsel’s oral demand to file an amended petition with the Civil Court Clerk, the Court indicated Petitioner was precluded from same pursuant to the provisions in CEEFPA. The Court, after reviewing the relevant law, adheres to this determination. Generally, leave to amend is to be freely given under CPLR §3025(b) by leave of court or on stipulation. In the present matter, the Court finds it necessary to point out that Petitioner neither sought Respondents consent to amend the pleadings nor sought leave of court. Rather, counsel indicated his intention to file an amended petition. The legislation is clear that a new proceeding must be filed to allege nuisance on a proceeding which was pending on the effective date of the legislation. In the present matter, the holdover petition (LT 955-20) was pending and thus no amendment is permitted. The legislation provides: “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 shall comply with all notice and service requirements under article 7 of the real property actions and proceedings law and this act.” Act, Part A, §9(1). The proceeding commenced under LT 955-20 is an eviction proceeding under CEEFPA (Act, Part A, §1[1]) and was pending on December 28, 2020. The petition neither alleged that Respondents are persistently and unreasonably engaged in behavior that substantially infringes on the use and enjoyment of other tenants or occupants nor that they were causing a substantial safety hazard to others. In such an event, the Act provides that the Petitioner must “[s]ubmit a new petition with such allegations and shall comply with all notice and service requirements under article 7 of the real property actions and proceedings law and this act.” The use of the word “new” as opposed to “amended” clearly sets forth the procedure to be applied. Further, the reference to service in the act and Article 7 of the RPAPL supports this Court’s conclusion that a new proceeding must be commenced. Act, Part A, §9. In interpreting legislation, the court must use the plain meaning of the statutory language itself. See, New York Skyline, Inc. v. City of New York, 94 A.D. 3d 239 (1st Dept., 2012). The CEEFPA “notice and service requirements” include service of a hardship declaration prior to the commencement of the proceeding and “[w]ith every notice of petition or summons and complaint served on a tenant.” Act, Subpart A, §3. The Court is prohibited from accepting any petition unless an affidavit of service accompanies same demonstrating the method of service of the hardship declaration and an affidavit attesting whether the Petitioner or its agents have received a copy of a hardship from the Respondent. Similarly, Article 7 of the RPAPL is exhaustive in defining the relationships of the parties, grounds for termination and the procedures of commencement and service of the proceedings. This reference to the commencement of the proceedings, especially when read with the CEEFPA notices and reference to a new petition leads this Court to the determination that a new proceeding is required. Furthermore, there may not be an amendment to a predicate notice. Chinatown Apts Inc. v. Chu Cho Lam, 51 NY2d 786 (1980). The petition under index number LT 1964-20 was filed after the effective date of CEEFPA. Accordingly, the foregoing analysis is inapplicable. However, this is a nonpayment petition. No allegations of nuisance are contained within the petition nor were any alleged in the default notice. The inquest which was held on July 1, 2021 and the notices in relation thereto lack any reference to a nuisance proceeding. As Respondents filed a hardship declaration on March 3, 2021, unless the Petitioner moves, on good faith, for a hardship hearing and further demonstrates that Respondents are not suffering a hardship, this matter must be stayed until at least January 15, 2022. Act, Part A §4. Conclusion As Petitioner has failed to demonstrate that there is a pending nuisance petition, Petitioner’s application for a nuisance hearing is denied. There are no grounds for the Court to permit Petitioner to file an amended petition alleging nuisance. CEEFPA requires, under these circumstances, that a new proceeding be filed. It is accordingly, ORDERED, Petitioner’s oral applications as set forth above are denied; and it is further ORDERED, as the Respondents filed hardship declarations, the above-entitled matters are stayed until at least January 15, 2022; and it is further ORDERED, the above-entitled matters will appear on the court’s calendar on February 3, 2022 at 10:00 A.M. in Part IV. Appearances are required. Dated: October 14, 2021
