DECISION/ORDER The following e-filed documents, listed by NYSCEF document numbers 14; 16-17 (motion no. 2), were read on this motion to vacate the stay effectuate by the ERAP statute. This is a holdover summary eviction proceeding predicated on termination of an unregulated tenancy. Respondent applied for relief under the Emergency Rental Assistance Program, resulting in a stay of the proceeding. Petitioner has moved to vacate the stay. For the reasons below, the motion is denied. “Public policy determined by the legislature is not to be altered by a court by reason of its notion of what the public policy ought to be” (Desrosiers v. Perry Ellis Menswear, LLC, 30 NY3d 488, 497 [2017] [internal citations omitted]). It is not the role of the court to “second-guess” the determination of the legislature; the court may not substitute its own determination therefor (Cohen v. State of New York, 94 NY2d 1, 14-15 [1999]). “A statute must be read and given effect as it is written by the legislature, not as the court may think it should or would have been written if the legislature had envisaged all of the problems and complications which might arise in the course of its administration; and no matter what disastrous consequences may result from following the expressed intent of the legislature, the judiciary cannot avoid its duty” (McKinney’s Cons Law of NY, Statutes §73, Comment). The COVID-19 Emergency Rental Assistance Program of 2021 (L 2021, ch 56, part BB, subpart A, §8) mandates a stay of nonpayment and holdover eviction proceedings where the household subsequently applies for ERAP benefits, until it is determined whether the household is eligible for those benefits. One may question the wisdom or fairness of a policy that stays an eviction proceeding predicated on, for example, expiration of an unregulated lease, pending an agency’s determination of application for rent arrears. It may be that the statute, in certain instances, has turned out to be a “disaster.” But is not for the court to deviate from the intent of the legislature to ameliorate the statute’s unexpected effects. Neither the statutory text, nor in this court’s opinion, an examination of the spirit, purpose, or history of the legislation, allow for any other conclusion as to the legislative intent except that both nonpayment and holdover proceedings are stayed until there is a determination of eligibility from the Office of Temporary and Disability Assistance.1 2 The statute does not run afoul of the Due Process Clause or otherwise implicate due process concerns. Unlike the COVID-19 Emergency Eviction and Foreclosure Prevention Act, the statute at issue in Chrysafis v. Marks (___ US ___, 141 S Ct 2482 [2021]), the ERAP statute does not permit a tenant to “be a judge in his own case.” In stark contrast to the “hardship declaration” in CEEFPA, a tenant’s ERAP application is explicitly subject to an eligibility determination. In other words, the tenant is not the judge of his own case, OTDA is.3 The court does not agree that a determination as to an applicant’s eligibility for ERAP may be made by the court. The statute itself is conspicuously bereft of any language permitting the interpretation that the court may determine ERAP eligibility. Moreover, the statute specifically refers to OTDA when discussing eligibility determinations: “Prior to making an eligibility determination, the commissioner or the commissioner’s designee shall undertake reasonable efforts to obtain the cooperation of landlords and utility providers to accept payments from this program” (L 2021, ch 56, part BB, subpart A, §9[2][b]). The court is not empowered to make determinations as to eligibility.4 The court has considered arguments concerning “futility” and “absurdity” and finds them unavailing. Accordingly, it is ORDERED that the motion is denied; and it is further ORDERED that upon a determination of eligibility by OTDA, Petitioner may request restoration of the proceeding by letter/correspondence uploaded to NYSCEF, with supporting documentation, and courtesy email notification to the court. This is the court’s decision and order. Dated: September 25, 2022
