Recitation, as required by CPLR Rule 2219(a), of the papers considered in determining Petitioner’s Motion to Restore to Calendar for Evidentiary Hearing to Contest Validity of Hardship Declaration (M Seq #7): Papers NYSCEF Doc # Legacy File 9 Respondent Bishop’s Hardship Declaration Dated and Filed 7/19/21 11 Petitioner’s Notice of Motion 12 Attorney’s Affirmation in Support of Motion Dated 9/22/21 13 Exhibits A-C in Support of Motion 14 (A) Case Summary (B) Respondent Bishop’s Hardship Declaration (C) Chief Admin Judge’s Administrative Order 261/21 Dated 9/8/21 Attorney’s Affirmation in Opposition to Motion Dated 10/15/21 15 Attorney’s Reply Affirmation Dated 10/26/21 16 Exhibits A-B in Support of Reply Affirmation 17 (A) Notice of Motion (B) Affidavit of Wanda Rodriguez Sworn to 10/26/21 For the reasons stated below, Petitioner’s motion to restore this proceeding for an evidentiary hearing to contest the validity of Respondent Bishop’s Hardship Declaration pursuant to L. 2021, Ch. 417, Part C, Subpart A, §10(a) is granted and the matter is set down for a virtual hearing on December 8, 2021 at 2:00 p.m. RELEVANT PROCEDURAL HISTORY AND BACKGROUND This is a “no cause” holdover eviction proceeding commenced by Notice of Petition and Petition dated November 15, 2019 based upon a predicate 30-day tenancy termination notice dated September 30, 2019. Petitioner by counsel and Respondents pro se settled the case on January 10, 2020 in an agreement which granted Petitioner a final judgment of possession, warrant to issue forthwith, execution stayed to February 29, 2020. Respondents did not move out by February 29, 2020 and, prior to a City Marshal requisitioning issuance of a warrant of eviction, the COVID-19 pandemic struck, Governor Cuomo issued his “New York State on Pause” Executive Order and all non-essential court proceedings and processes were postponed by Chief Administrative Judge Marks under Administrative Order (AO) 68/20 dated March 16, 2020. Thereafter, and throughout the pandemic, Judge Marks and New York City Civil Court’s Administrative Judges have issued a series of AOs and Directives and Procedures (DRP), as well as other less formal protocols, establishing procedures for litigants and/or their attorneys to follow in eviction proceedings, first only as to matters deemed essential and then as to non-essential ones. AO 160A/20, issued on August 12, 2020 and effective August 20, 2020, addresses residential eviction proceedings like this one that were commenced prior to March 17, 2020, authorizing such cases to proceed after the court conducts a status or settlement conference, generally remotely. This requirement applies at any stage of the eviction proceeding, “including any matter where a warrant of eviction has issued and been delivered to an enforcement agent but has not been executed.” DRP-213, also issued on August 12, 2020, requires warrant requisitions to be presented by motion on notice to the respondent, and such motions are deemed to comply with the conference requirement of AO 160A/20. A specified “Warning!” notice, in nine languages, with information about how to respond to the papers without going to court and how to get a free lawyer, must accompany such motions. AO 160/20 and DRP-213 were updated in August 2021 by the issuance of AO 245/21 and DRP217, which continue the conference, motion and notice requirements for petitioners seeking to requisition and enforce warrants in cases with pre-pandemic judgments. Petitioner filed a “Stipulation and Consent to E-Filing” on November 18, 2020, followed by the e-filing on December 9, 2020 on NYSCEF (New York State Courts Electronic Filing system) of a DRP-213 motion, noticed for January 8, 2021 at 10:00 a.m. Before the court calendared that motion, effective December 28, 2020, the New York State legislature enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA), L. 2020, Ch. 381.1 Initially, CEEFPA stayed all pending proceedings for sixty days. CEEFPA Part A, §2. CEEFPA authorized a further stay of eviction proceedings and evictions — originally through May 1, 2021 and then extended through August 31, 2021 — for tenants experiencing a financial hardship and/or for whom vacating the premises and moving into new permanent housing would pose a significant health risk due to the COVID-19 pandemic. The mechanism for triggering these stays under CEEFPA was a tenant’s signing “under penalty of law” a specified “Hardship Declaration” form, defined in CEEFPA Part A, §1(4), and submitting it to their landlord or the court. Further, when a tenant selected the “financial hardship” option, CEEFPA Part A, §11 provided that the Hardship Declaration, “shall create a rebuttable presumption that the tenant is experiencing financial hardship, in any judicial or administrative proceeding that may be brought, for the purposes of establishing a defense under chapter 127 of the laws of 2020, an executive order of the governor or any other local or state law, order or regulation restricting the eviction of a tenant suffering from a financial hardship during or due to COVID-19.” The Court calendared Petitioner’s DRP-213 motion initially for a virtual appearance on June 10, 2021 in the Housing Motion Part (HMP), sending out notice to both sides. On that date Respondents were referred for free legal services and the case was transferred to Part D and adjourned to July 20, 2021. On July 19, 2021 Respondent Bishop e-filed a Hardship Declaration with the Court by his newly-retained counsel, with both of the two boxes checked off on the form, indicating that (A) he was “experiencing financial hardship” and unable to pay his rent or use and occupancy because of “one or more” of a list of five COVID-19 pandemic related factors; and (B) “vacating the premises and moving into new permanent housing would pose a significant health risk” due to an increased risk for severe illness or death from COVID-19. Accordingly, at the virtual appearance on July 20, 2021 the Court stayed Petitioner’s DRP-213 motion under CEEFPA and re-calendared it for a virtual conference on September 3, 2021. On August 12, 2021, CEEFPA Part A was enjoined by the United States Supreme Court in Chrysafis v. Marks (210 LEd2d 1006, 2021 US LEXIS 3635, 2021 WL 3560766 [2021]), which specifically took issue with the statute to the extent it allows a tenant to “self-certif[y] financial hardship” while precluding “a landlord from contesting that certification”, finding that, “This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.” In response to Chrysafis, effective September 2, 2021, the New York State Legislature enacted Chapter 417 of the Laws of 2021 which, inter alia, reinstated many of the Hardship Declaration provisions and extended the prohibition on evictions through January 15, 2022 for residential tenants who suffered financial hardship during the COVID-19 “covered period”. L. 2021, Ch. 417, Part C, Subpart A, §6. Among other provisions, the new law reinstated CEEFPA’s “Rebuttable presumption” section quoted above; however, the language was revised to start with the following proviso: “Unless a court determines a tenant’s hardship claim invalid pursuant to section ten of this act “. L. 2021, Ch. 417, Part C, Subpart A, §9. Section ten provides a new mechanism for petitioners to challenge the validity of Hardship Declarations: “A motion may be made by the petitioner, attesting a good faith belief that the respondent has not experienced a hardship, with notice to the respondent, and the court shall grant a hearing to determine whether to find the respondent’s hardship claim invalid.” L. 2021, Ch. 417, Part C, Subpart A, §10. To implement this section of the new law, Judge Marks issued AO 261/21 on September 8, 2021 which, inter alia, addresses the “Invalid Hardship Declaration Hearing”, providing that, “In a pending proceeding where a Hardship Declaration was previously submitted, a petitioner may make a motion on notice to respondent-tenant attesting a good faith belief that the respondent has not experienced the certified hardship.” At the September 3, 2021 virtual conference, the Court granted Respondents’ request to continue the stay of this proceeding through January 15, 2022 under L. 2021, Ch. 417 and recalendared it for a virtual appearance on January 18, 2022 at 11:00 a.m. On September 22, 2021 Petitioner’s counsel e-filed the motion which is now before the Court, seeking to challenge the validity of Respondent Bishop’s Hardship Declaration under L. 2021, Ch. 417, Part C, Subpart A, §10. While Petitioner noticed the motion for October 12, 2021 at 9:30 a.m., pursuant to administrative protocols the Court calendared the motion for a virtual appearance on October 18, 2021 at 10 a.m. and sent out Microsoft Teams videoconference invitations to counsel for both sides. Respondents’ counsel filed opposition papers on October 15. At the October 18 appearance the Court granted Petitioner’s request for time to file reply papers and adjourned the motion to October 29, 2021 when argument was heard and the motion was marked submitted. PETITIONER’S MOTION Petitioner’s motion is supported by the affirmation of her attorney, who argues that Petitioner is entitled to an evidentiary hearing to contest the validity of the Hardship Declaration pursuant to AO 261/21. Copies of the Hardship Declaration, AO 261/21 and a case summary from the court’s case management system are attached as exhibits. As factual support for Petitioner’s “good faith belief that respondent has not experienced the certified hardship”, Petitioner’s attorney asserts: (1) during the July 20, 2021 virtual appearance Respondent Bishop “was observed in full uniform while working at the United States Post Office”, Attorney’s Affirmation in Support at 8; and (2) based on information obtained from “a credible tenant who is willing and available to testify”, Petitioner believes Respondents do not live at the subject premises — which they may have illegally sublet to others — and “therefore have alternative means of housing they could use.” Attorney’s Affirmation in Support at 11. In opposition, Respondents’ attorney submitted an affirmation raising three arguments: (1) the notice of motion is fatally defective as it fails to contain the part or room where the motion is to be heard in violation of CPLR R 2214(a); (2) Petitioner has “failed to rebut the presumption that the hardship declaration is true and accurate,” Attorney’s Affirmation in Opposition at 4, citing L. 2021, Ch. 417, Part C, Subpart A, §9; and (3) the motion is fatally defective because it is not supported by an affidavit of someone with personal knowledge. On reply, Petitioner argues that the motion was properly noticed with a date, time and place and that Respondents’ other arguments are now moot as Petitioner has provided an affidavit of someone with personal knowledge whose allegations “adequately rebut the presumption that Respondents are having financial difficulties or having issues finding ‘new permanent housing’.” Attorney’s Reply Affirmation at 8. Attached as Exhibit B is the affidavit of Wanda Rodriguez, sworn to on October 26, 2021, who states she lives in the same building as Respondents and (1) has witnessed Respondent Vasquez leaving the building wearing a work uniform; and (2) based on her observations, believes Respondents reside elsewhere and are subletting the subject premises to other individuals. At oral argument on the motion Respondents’ attorney argued that the Court should disregard the Rodriguez affidavit as reply papers should not be permitted to correct deficiencies in the moving papers. DISCUSSION First, the court rejects Respondents’ argument that the motion is fatally defective due to improper noticing under CPLR R 2214(a). Petitioner noticed the motion in an appropriate manner given administrative protocols in place due to the continuing effects of the COVID19 pandemic on courthouse operations. On the one hand, AO 245/21, issued on August 13, 2021, directs that, “All residential eviction matters, both nonpayment and holdover, may proceed in the normal course.” However, that same directive is “subject to individual court scheduling requirements occasioned by health and safety concerns arising from the coronavirus health emergency”, and eviction proceedings are permitted to “be conducted remotely or in person as appropriate.” Accordingly, regardless of whatever date, time and Part a moving party might state in their Notice of Motion, motions filed in Bronx Housing Court are scheduled and calendared by the Court, which then notifies the parties of the date, time and place of future appearances; whether they will be in-person or virtual; and, for unrepresented litigants, ways to contact the Court for more information. The Court sends out such notices, generally around two weeks in advance of a scheduled appearance, either by first-class mail or, where email addresses have been provided and the matter is scheduled to be conducted virtually, by electronic Microsoft Teams invitations. Here, after receiving NYSCEF notification of Petitioner’s filing of this motion the Court notified the parties’ attorneys of the date, time and place the motion would be heard virtually via Microsoft Teams invitations. Those invitations were accepted and both sides appeared by counsel at the appointed date, time and place. The Court discerns no prejudice to Respondents in this method of notification, contrary to the conclusory argument of their attorney. Second, it is not Petitioner’s burden at this juncture “to rebut the presumption that the hardship declaration is true and accurate.” Affirmation in Opposition at 4. Rather, the statute’s “Rebuttable presumption” section, L. 2021, Ch. 417, Part C, Subpart A, §9, conditions the availability of the statutory presumption of financial hardship on a landlord’s right to challenge the validity of a Hardship Declaration at a §10 hearing. This is clear from §9′s first sentence: “Unless a court determines a tenant’s hardship claim invalid pursuant to section ten of this act “. To the extent Respondents’ argument is that Petitioner must rebut the §9 presumption that the tenant is experiencing financial hardship in its motion papers seeking a §10 hearing, such a reading of the statute is unsupported and would circumvent the very purpose of this new law. See Bitzarkis v. Evans (2021 NY Slip Op 21280, 2021 NY Misc LEXIS 5174, 2021 WL 4889193 [Civ Ct Kings Co])(“the Legislature could not have intended to provide landlords with a meaningless remedy”). Section 9 states when the presumption applies, and those purposes do not include a §10 hearing to determine the validity of a Hardship Declaration, much less the motion which a petitioner must make to get that hearing. That the §10 hearing was created in response to Chrysafis v. Marks, supra, is evident from its citation in the “Legislative intent” section of the statute. L. 2021, Ch. 417, Part C, Subpart A, §2. In interpreting §§9 and 10 of the new law, the Court’s primary consideration “is to ascertain and give effect to the intention of the Legislature”, Riley v. County of Broome (95 NY2d 455, 463, 742 NE2d 98, 719 NYS2d 623 [2000]), and unambiguous language in a statute, “is the clearest indicator of legislative intent”. DaimlerChrysler Corp v. Spitzer (7 NY3d 653, 660, 827 NYS2d 88, 91, 860 NE2d 705, 708 [2006]). Finally, Petitioner’s motion papers are sufficient to warrant granting the relief sought. The moving papers do include factual assertions by Petitioner’s attorney as to matters she has personal knowledge of: Her own observation of one of the Respondents in uniform at his place of employment during a virtual court appearance and her summary of what someone with personal knowledge of other relevant facts will testify to. However, it is not necessary for the Court to decide whether these statements constitute a sufficient assertion of Petitioner’s “good faith belief that the respondent has not experienced a hardship” for the matter to be set down for a §10 hearing. Petitioner has supplemented her motion papers on reply with another tenant’s sworn affidavit asserting first-hand observations of one of the Respondents in work uniform and a belief, based on those observations, that Respondents reside elsewhere and are subletting the subject premises to other individuals. These assertions, along with those in the moving papers, are a sufficient basis to set the matter down for an evidentiary hearing to determine the validity of Respondent Bishop’s Hardship Declaration. See, e.g., Harbor Tech LLC v. Correa (2021 NY Slip Op 50995[U], 2021 NY Misc LEXIS 5253, 2021 WL 4945158 [Civ Ct Kings Co]); Bitzarkis v. Evans, supra; Sanchez-Tiben v. Washington (2021 NY Slip Op 21276, 2021 NY Misc LEXIS 4898, 2021 WL 4203312 [Civ Ct Bx Co]); and compare Casey v. Whitehouse Estates Inc (2021 NY Slip Op 21245, 2021 NY Misc LEXIS 4898, 2021 WL 4203312 [Sup Ct NY Co]). Respondents’ argument that the reply affidavit should not be considered is inapposite. “[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant,” Ritt v. Lenox Hill Hosp (182 AD2d 560, 562, 582 NYS2d 712, 713 [1st Dep't 1992]), and that is exactly what Petitioner did here. Respondents argued in opposition that the motion is fatally defective because it is not supported by an affidavit of someone with personal knowledge. Petitioner addressed this argument on reply by providing such an affidavit. Certainly, there is a long line of cases reject reply papers where they seek to remedy “basic deficiencies in [movant's] prima facie showing rather than respond to arguments in [nonmovant's] opposition papers, Migdol v. City of NY (291 AD2d 201, 201, 737 NYS2d 78, 79 [1st Dep't 2002]), citing Lumbermens Mut Cas Co v. Morse Shoe Co (218 AD2d 624, 625, 630 NYS2d 1003, 1005 [1st Dep't 1995]). However, those cases involve dispositive motions for summary judgment or dismissal which require the movant to meet specific burdens. Alvarez v. Prospect Hosp (68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 [1986]); Zuckerman v. New York (49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 [1980]). Here, upon granting Petitioner’s motion the matter will be set down for a hearing at which Respondents will have the opportunity to present evidence in support of their claim that the hardship they experienced due to the COVID-19 pandemic warrants a continued stay of execution of the warrant of eviction. If Petitioner prevails at that hearing, the case “shall continue to a determination on the merits,” L. 2021, Ch. 417, Part C, Subpart A, §10(c), which in this case means that Petitioner’s previously filed DRP-213/DRP-217 motion will be heard and decided. If Respondents prevail, the court “shall grant a stay or continue a stay” of the hearing of Petitioner’s earlier motion, through January 15, 2022. L. 2021, Ch. 417, Part C, Subpart A, §10(b). CONCLUSION For the reasons stated above, and on the facts and circumstances of this case, a sufficient showing has been made to grant Petitioner’s motion and set the matter down for a virtual hearing to determine the validity of Respondent Bishop’s hardship claim on December 8, 2021 at 2:00 p.m. This constitutes the Decision and Order of the Court, copies of which are being uploaded on NYSCEF. Dated: November 3, 2021
