Recitation, as required by C.P.L.R. §2219(a), of the papers considered in the review of Petitioner’s Motion to Vacate the E.R.A.P. Stay (Motion No.1 on N.Y.S.C.E.F.): Papers Numbered Notice of Motion (Motion #1 on N.Y.S.C.E.F.) 1 Affirmation in Opposition (Entries #13-16 on N.Y.S.C.E.F.) 2 Affirmation in Reply (Entry #17 on N.Y.S.C.E.F.) 3 Petitioner commenced this nonpayment proceeding alleging that Respondent Sorange Jaquez is indebted to Petitioner in the amount of $2,264.00 for the letting of 38-42 Elliot Place, Apt. F, Bronx, NY 10452 (the “subject premises”). The arrears accrue from June 30, 2020 through September 30, 2020 at a rate of $566.00 per month. The subject premises is subject to the Rent Stabilization Law and the Petition provides that the arrears demanded is only for Respondent’s share of the rent pursuant to the N.Y.C.H.A. Section 8 supervised rental subsidy. The Notice of Petition and Petition were filed with the court on December 23, 2020. Respondent filed a written pro se answer with the court on January 29, 2021. Respondent alleges in the answer, inter alia, that she lost part of her pay due to the pandemic. The matter appeared on the court’s calendar on March 2, 2022 when the court adjourned the proceeding to April 1, 2022 for the Bronx Legal Services to screen Respondent for representation. On April 1, 2022, the matter was adjourned to April 15, 2022 for the Neighborhood Association for Inter-Cultural Affairs, Inc. (“N.A.I.C.A.”) to conduct an intake with Respondent. N.A.I.C.A. then filed a notice of appearance on Respondent’s behalf on April 15, 2022, the return date, whereupon the matter was adjourned to May 12, 2022. On the May 12, 2022 appearance, the court was informed that Respondent had a pending E.R.A.P. application (#AJ5KQ) which was filed on July 15, 2021. The court then placed the matter on the E.R.A.P. administrative calendar pending determination of eligibility. As of the date of this decision and order, the application is still under review. Petitioner now moves to vacate the stay associated with Respondent’s application on the ground that Respondent is a Section 8 tenant and, thus, her application is extremely low on the priority list for the distribution of E.R.A.P. funds. Petitioner argues that a determination of Respondent’s application has been pending for almost 18 months and that the length of time of the stay, the diminished likelihood of an E.R.A.P payment being made for subsidized tenants, as well as the prejudice faced by Petitioner in continuing the stay should compel this court to vacate the E.R.A.P. stay imposed by the application. Petitioner, in its reply papers, cites to Bay Park Two-L.L.C. v. Pearson, 77 Misc 3d 534 (Civ. Ct., Kings Co. 2022) and Leshchinsky v. Lutula, 77 Misc 3d 1206(A) (Civ. Ct., Kings. Co. 2022) for support. Both decisions vacated E.R.A.P. stays imposed by the applications of subsidized tenants and factored prejudice to Petitioner in continuing the stays due to the length of time that has passed. Respondent opposes the motion. Respondent argues that a determination of eligibility is to be made by the Office of Temporary and Disability Assistance (“O.T.D.A.”) and not by the court and that the E.R.A.P. Statute does not state that subsidized tenants are ineligible for the program. Respondent maintains that she continues to face ongoing financial hardship due to the pandemic and, based upon the plain reading of the statute, Respondent is entitled to its protection. Respondent also points to the fact that the arrears accrued during the covered period of the statute and not prior to it. Respondent asks the court to follow Robo L.L.C. v. Matos, 75 Misc 3d 1211(A) (Civ. Ct., Bronx Co. 2022) where the court refused to vacate the E.R.A.P. stay associated with a subsidized tenant’s application. The court disagrees with Petitioner that it should vacate the stay because Respondent is ineligible for the stay since she is a subsidized tenant. As decided by this court in LaPorte v. Garcia, 75 Misc 3d 557 (Civ. Ct., Bronx Co. 2022), “the determination of eligibility rests with [O.T.D.A.], determining whether a stay applies or should be lifted, based upon the particular circumstances of a proceedings, is in the court’s realm.” LaPorte, 75 Misc 3d at 559, citing 2986 Briggs L.L.C. v. Evans, 74 Misc 3d 1224(A) (Civ. Ct, Bronx Co. 2022). Hence, whether Respondent would or would not be entitled to receive E.R.A.P. funds as a subsidized tenant is left for O.T.D.A. to determine as that agency is the one that is authorized by the statute to review the application. Not this court. Petitioner also argues that the E.R.A.P. program does not have funding to pay pursuant to Respondent’s application. However, the O.T.D.A. website states that the agency is “currently reviewing and processing eligible ERAP applications through November 30, 2022.” New York State Office of Temporary and Disability Assistance, “Emergency Rental Assistance Program (ERAP),” last visited on 1/29/23, https://otda.ny.gov/programs/emergency-rental-assitance/. Respondent’s application was submitted prior to November 30, 2022 and may still be reviewed and processed. To vacate a stay based upon the mere probability that O.T.D.A. may not pay pursuant to the application is not enough to warrant lifting the stay. The court agrees with Respondent that subsidized tenants are not deemed to be ineligible for the program. O.T.D.A. states on its website that “[a]pplications from subsidized housing tenants whose rent is limited to a certain percentage of income (including public housing, section 8 and FHEPS) are not currently able to be paid. State law requires that these applications be paid after all other eligible applicants have been reviewed and paid. Therefore, at this time, none of the subsidized housing applications can be paid regardless of the date their application was submitted.” Id. (emphasis in original). Although other applications will be considered prior to those submitted by subsidized tenants, their applications will still be considered, reviewed, and processed once the funds satisfy the applications of non-subsidized tenants. The website goes on to state that applications that are ineligible for E.R.A.P. assistance are households that have income over 80 percent of the area median income, households that have already received 12 months of E.R.A.P. rental assistance, and households that have income up to 80 percent of the area median income but live in certain towns on Long Island that are not participating in the state program. See id. Most importantly, O.T.D.A., which is tasked with administering the program, does not state that applications of subsidized tenants will also be ineligible in addition to the three specific disqualifications mentioned above. As stated above, determination of whether Respondent is eligible for E.R.A.P. funds rests with O.T.D.A. and whether the stay should continue pursuant to the application is for this court to determine. Section 8 of Part BB, Subpart A of the E.R.A.P. Statute provides in pertinent part: “[I]n 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 under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility.” L. 2021, Ch. 56, Part BB, Subpart A, §8 as amended by L. 2021, Ch. 417, Part A, §4. The language “any pending eviction proceeding” incorporates both nonpayment and holdover proceedings and does not make a distinction between them when it concerns the stay. The exception to this language appears in Section 9-A of the E.R.A.P. Statute which concerns proceedings where respondents are committing nuisance or objectionable conduct, which is not the case here. Section 2(9) of the E.R.A.P. Statute defines “rent” the same as R.P.A.P.L. §702 which defines it, in pertinent part, as: “the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement.” And Section 2(10) of the E.R.A.P. Statute defines “rental arrears” as unpaid rent accruing on or after March 13, 2020. Here, Respondent has a rental obligation to Petitioner and has applied for the program to address the rental arrears covered by the statute that she owes to Petitioner. Accordingly, the stay associated with Respondent’s application shall continue. Respondent is still entitled to the continuance of the stay even though she owes more than 15 months in rental arrears and the E.R.A.P. funds would not cover all the arrears outstanding. See Mason v. Reyes, 75 Misc 3d 1210(A) (Civ. Ct., Kings Co. 2022). The plain reading of the statute supports that finding. The statute, as recited above, states that if a respondent applies for the program to cover “part of the arrears claimed by the petitioner” then the proceeding shall be stayed pending O.T.D.A.’s determination of eligibility. L. 2021, Ch. 56, Part BB, Subpart A, §8 as amended by L. 2021, Ch. 417, Part A, §4. Since Respondent owes arrears during the covered period, Respondent is entitled to the stay. The court also finds that Petitioner’s constitutional argument has no merit. Unlike the situation in Chrysafis v. Marks, 141 S. Ct. 2482 (2021), where landlords were unable to challenge the hardship declarations filed by their tenants, the housing courts, including the court in this decision, have entertained motions by landlords to vacate the stay and have even granted such a relief if the circumstances warrant the vitiation of the stay. See 2986 Briggs, 74 Misc 3d 1224(A) (citing to various decisions where E.R.A.P. stays have been vacated). See also Shi Gan Zheng v. Guiseppone, 74 Misc 3d 1231(A) (Civ. Ct., Richmond Co. 2022) (citing decisions that have vacated E.R.A.P. stays as well). The court respectfully declines to follow both Pearson, 77 Misc 3d 534, and Leshchinsky, 77 Misc 3d 1206(A) which Petitioner relies upon. The statute clearly and unambiguously provides that if Respondent, despite her status as a Section 8 tenant, applies for the covered rental arrears claimed by Petitioner then the matter, itself, shall be fully stayed pending O.T.D.A.’s determination of eligibility if the exceptions in Section 9-A do not apply. See L. 2021, Ch. 56, Part BB, Subpart A, §8 as amended by L. 2021, Ch. 417, Part A, §4. This court refuses to purposely engraft additional exceptions into the statute — such as, but not limited to, vacating an E.R.A.P. stay based upon a tenant’s status as a recipient of a subsidy, factoring prejudice to a petitioner due to the length of time passed due to the stay, and where more than 15 months of rental arrears are outstanding — where there are none besides the ones explicitly and unambiguously mentioned by the statute in Section 9-A. See Aloni v. Oliver, 70 Misc 3d 137(A) (App. Term, 1st Dep’t 2021) (refusing to engraft into the R.P.A.P.L. a “familial exception” to licensee proceedings because the statute does not provide for such and stating that courts should refrain from engrafting exceptions into a statute where there are none). New language also cannot be incorporated into the statute where none exists based upon the plain reading of the statute. See Roberts v. Tishman Speyer Properties, L.P., 62 AD3d 71 (1st Dep’t 2009). Here, the unambiguous language of the statute, which provides protection to a Section 8 tenant who has applied for the program, shall be given its plain meaning and this court may not resort to statutory construction beyond the words of the statute. See Kuzmich v. 50 Murray Street Acquisition L.L.C., 34 NY3d 84 (1st Dep’t 2019). Vacating the stay here based upon Respondent’s status as a subsidy recipient would conflict with the legislative intent behind the statute which seeks to aid applicants negatively impacted by COVID-19 by providing a temporary stay on evictions to afford affected households an opportunity to preserve and manage their tenancies with the disbursement of funds if they are determined to be eligible for the program. See L. 2021, Ch. 417, §2 (stating that the E.R.A.P. Statute’s goals are to “cover[] the cost of rent arrears and provid[e] widespread eviction protections.”) “In the construction of statutory provisions, the legislative intent is the great and controlling principle.” Matter of Albano v. Kirby, 36 NY2d 526, 529-30 (1975). One must be mindful of the spirit and purpose of the statute along with the objectives of the enactors when interpreting a statute. See id. at 530-31. “[T]he enacting body will be presumed to have inserted every provision for some useful purpose.” Id. at 530. See also McGowan v. Mayor of City of NY, 53 NY2d 86 (1981). The E.R.A.P. Statute, an emergency legislation, was drafted by the legislators, elected by the people, who determined that it would serve the needs and wellbeing of affected New Yorkers in temporarily freezing proceedings where applicants that have been financially impacted by the pandemic may be entitled to assistance by the program. This court then shall not question the Legislature’s determination that eligible Section 8 tenants shall be protected by the stays associated with their application due to any financial hardship caused by the pandemic, despite being low on the priority list. “Whatever the wisdom of this choice, this is the policy choice the legislature has made” and it is not for this court to question the wisdom of the legislature on its policy decision. Matos, 75 Misc 3d 1211(A), *2 (Civ. Ct., Bronx Co. 2022), citing Hope v. Perales, 83 NY2d 563 (1994). Excluding Section 8 tenants from protection of the statute greatly restricts the purpose of providing “widespread eviction protections.” “The principle is firmly established today that all contracts are subject to the police power of the State, and, when emergency arises and the public welfare requires modification of private contractual obligations in the public interest, the question is not whether legislative action affects contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end.” Twentieth Century Associates v. Waldman, 294 NY 571, 580 (1945) (internal quotations omitted). This court shall not disturb Legislature’s determination that, due to the emergency caused by the pandemic which continues to negatively affect households in this State, Section 8 tenants may still apply and be considered for program eligibility despite being low on the priority list. “[T]he Legislative actions in ascertaining the facts, considering the harm being done to the public welfare and the evil to be corrected, determining the remedy required and providing same by law, the performance of necessary legislative functions which, expressed in a statute, are binding and conclusive upon this court.” Kuperschmid v. Globe Brief Case Corp., 185 Misc. 748, 751-52 (App. Term, 1st Dep’t 1945). Accordingly, the matter shall continue to be stayed pending determination of eligibility. In conclusion, the court understands and fully appreciates the frustration of petitioners who have awaited many months to proceed with their claims but are stayed from doing so due to E.R.A.P. applications filed by subsidized tenants. However, the Legislature has determined that such applications may still be considered and it is the opinion of this court that the Legislature, and not this court, should revisit the emergency legislation if the stays continue for a lengthy period of time. It is not the role of this court to purposely engraft an exception into the emergency statute barring Section 8 tenants from applying for the program when the plain reading of the statute prevents such a finding. That is the Legislature’s prerogative. The court stresses that this decision is strictly limited to whether a subsidized tenant is entitled to a stay pursuant to their E.R.A.P. application to address rental arrears during the covered period and does not apply to circumstances that go beyond that such as in a situation where an applicant does not have any rental obligation to a petitioner. Based upon the foregoing, Petitioner’s motion is denied in its entirety. The matter shall remain on the E.R.A.P. administrative calendar pending determination of Respondent’s application. Once a determination has been made, either party may reach out to the Part and request that the matter be placed back on the court’s active calendar. The foregoing constitutes the decision and order of the court. Dated: January 30, 2023
