The following papers numbered 1 to 2 were read and considered on the petitioner’s motion to vacate the ERAP stay and restore the case to the calendar. Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation/Affidavits in Opposition 2 The petitioner filed the within holdover petition on December 4, 2019, seeking possession of Apartment 3R located at 44 Cliff Street in the city of Yonkers. The notice to cure annexed to the petition alleged that more than three individuals were residing in the apartment in violation of the lease agreement, the Yonkers City Code, and the Emergency Tenant Protection Regulations. The predicate notice further alleged the respondents had caused “considerable amount of damage to the premises and failed to keep you [sic] apartment clean.” (Petitioner’s 10 Day Notice to Cure annexed to the Notice of Petition and Petition dated October 4, 2019). The respondent answered and raised warranty of habitability defenses. On or about February 4, 2021, the respondent filed a COVID-19 Hardship Declaration. The matter was stayed pursuant to Part A Section 6 of the COVID-19 Emergency Eviction and Foreclosure Prevention Act [L 2020 ch. 381]. The respondent alleged that she has a pending application to the COVID-19 Emergency Rental Assistance Program (“ERAP”). The matter was automatically stayed pursuant to the legislation, which provides: “in any pending eviction proceeding, whether filed prior to, on, or after the effective date of this act, against a household who has applied or subsequently applies for benefits all proceeding shall be stayed pending a determination of eligibility.” 2021 NY Laws Ch. 56, part BB Sec 8. The petitioner now moves to vacate the present ERAP stay on the grounds that the matter is a pre-COVID holdover and as respondents pose a threat to the safety and welfare of the residents of the building and the property therein. The petitioner further asserts that it received LRAP funds thereby rendering ERAP futile. The respondent opposed and argued that ERAP has not exhausted its funds and that assistance from the LRAP funds does not prohibit rental assistance from another program. Rather, respondent maintained, the City of Yonkers receive two rounds of funding (ERAP 1 and ERAP 2), according to the policies and procedures of the Yonkers ERAP program. (Respondent’s Exhibit F). These documents also indicate that eligible households may receive up to 18 months of assistance. Id. Accordingly, although the petitioner received LRAP funds, this payment neither precludes respondent’s eligibility for an additional 6-month payment from the ERAP funds nor does it impact respondent’s eligibility to seek assistance from other agencies for the remaining balance once Yonkers makes a final determination regarding her application. “The plain language of the statute clearly indicates that any pending ERAP application stays a proceeding until an eligibility determination is made.” Sea Park E LP v. Foster, 74 Misc 3d 214 [Civ Ct Kings Co. 2021]. The court must “ascertain and give effect to the intention of the Legislature” in interpreting the ERAP legislation. Riley v. County of Broome, 95 NY2d 455 [2000]. The clear and broad, intention of the legislature was to prevent evictions by imposing of a stay of all proceedings “whether filed prior to, on, or after the effective date” of the legislation “against a household who has applied or subsequently applies for benefits.” 2021 NY Laws Ch. 56-part BB Sec 8. The legislation contains a “nuisance” exception, in which no stay applies, provided the tenant “intentionally causes significant damage to the property or 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.” 2021 NY Laws Ch. 56-part BB Sec 9-a. As expansive as the legislation is for the stay pending the evaluation of the tenant’s ERAP application, the exception is limited to the following: 1. In proceedings filed after September 1, 2021: the stay shall not apply provided the petitioner files an affidavit alleging that the respondent intentionally caused significant damage to the property or is “persistently and unreasonably engaging in such behavior, with a specific description of the behavior alleged.” 2. For proceedings pending as of September 1, 2021, where the petitioner did not previously raise these allegations, the legislation mandates the petitioner file a new petition. 3. For matters with an existing judgment which was issued prior to September 1, 2021, and based on the tenant’s objectionable or nuisance behavior, a hearing to determine whether the damage continued or whether the tenant continued to engage in the behavior that “substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.” Id. Clearly the above matter does not fall within the above listed exceptions. As such, there is no basis under the legislation to vacate the ERAP stay on the grounds of nuisance. The petitioner’s conclusory assertions that the court should exercise its inherent power to vacate the stay is insufficient to move the court to grant such relief. A nuisance is “a condition that threatens the comfort and safety of others in the building” which is generally evidenced by “a pattern of continuity of recurrence of objectionable conduct.” Frank v. Park Summit Realty Corp, 175 AD2d 33, 35-36 [1st Dept 1991]. While several courts have analyzed various grounds upon which to vacate an ERAP stay, the petitioner’s speculative and conclusory claims, unsupported by an affidavit from an individual with knowledge of the particular facts do not provide a sufficient basis for the requested relief. No details are provided regarding the alleged “hazardous conditions” nor any of the other allegations presented by petitioner’s counsel. Similarly, whether the petitioner intends to participate in the ERAP program is unclear from counsel’s affirmation. The petitioner’s motion is denied, and the matter is hereby stayed pending a determination on the respondent’s ERAP application. The matter will be placed on the ERAP administrative calendar pending this determination. Once ERAP has rendered a decision on the respondent’s application, the parties may request the matter be restored. Date: October 19, 2022
