DECISION AND ORDER INTRODUCTION The Petitioner, by Notice of Petition and Petition filed with the Court on June 15, 2022, commenced a nonpayment summary proceeding to recover possession of certain real property known and described as 23 Chestnut Street, Apt. 2, Middletown, New York (“the Property”). This action originally was scheduled for appearances on July 26, 2022 at 9:20 a.m.; the Petitioner appeared by counsel, but the Respondents failed to appear. At that time, the Court granted a default judgment for the Petitioner in the amount of $5,600.00 (representing rent arrears for the months of January 2022, April 2022, May 2022, and June 2022, as alleged in the Petition) plus costs and a warrant without stay. The Respondents sent an email to the court later that morning requesting an adjournment and indicating they could not appear in court on July 26th “because our child Michael who currently resides with family in the [B]ronx had an urgent medical situation today as well as yesterday that took us away from Middletown.” Based on that email, the Court vacated the default judgment and adjourned the action to August 9, 2022. On August 9, 2022, the Petitioner’s property manager and counsel appeared in court, as did Respondent Neilson. Respondent Dolson failed to appear; Respondent Neilson stated Respondent Dolson had to remain at home to watch their children, but Respondent Neilson indicated he could represent the interests of Respondent Dolson. The Petitioner and Respondent Neilson then settled this action by a stipulation placed on the record in court (“the Stipulation”) as follows: 1) the Petitioner waived legal fees and costs; 2) the Petitioner would be awarded judgment for $8,600.00, representing rent arrears through August 2022 (“the Judgment”), and the Respondents consented to the Judgment; 3) a warrant of eviction would be issued against the Respondents without stay (“the Warrant”); 4) the Judgment and the Warrant would be held in escrow by the Petitioner’s attorney pending payments by the Respondents towards the rent arrears of $8,600.00, which payments would be in the amount of $1,500.00 each and would be paid on September 1, 2022, October 1, 2022, November 1, 2022, December 1, 2022, January 1, 2023, and February 1, 2023 (the February payment would be for any balance due at that point); 5) the Respondents, in addition, would have to pay the regular monthly rent in the amount of $1,500.00 as it became due in the months after August 2022; 6) the Petitioner would make repairs (such as front and back steps and plumbing work on a toilet and the hot water heater) and provide extermination services at the Property, and the Respondents would send a list to the Petitioner and the Petitioner’s attorney within ninety (90) days of the court appearance on August 9, 2022 setting forth the required and requested repairs; and 6) if the Respondents failed to make the payments toward arrears as described above and/or failed to pay the current monthly rent in a timely manner, the Petitioner’s attorney could release the Judgment and the Warrant from escrow, without notice, and the Petitioner could have the Warrant executed. The Court asked Respondent Neilson questions about the Stipulation to make sure he understood the terms and conditions of the Stipulation and voluntarily agreed to it; Respondent Neilson indicated he understood the terms, no one was forcing him to enter into the Stipulation, he agreed to abide by the Stipulation’s terms, and he voluntarily agreed to the Stipulation. The Respondents, through Legal Services of the Hudson Valley, on October 14, 2022, filed with the Court a proposed Order to Show Cause, seeking a stay of the issuance or execution of the Warrant or, in the alternative, asking that the Judgment and the Warrant be vacated (“the OTSC”)1. The Court signed the OTSC that day and scheduled this action for a conference on November 1, 2022. On November 1, 2022, the Petitioner’s property manager and counsel appeared in court, as did the Respondents and Brett Broge, Esq., staff attorney at Legal Services of the Hudson Valley. The Petitioner filed its opposition papers to the OTSC on November 1, 2022. The Court directed the Respondents to file any reply to the Petitioner’s papers by November 9, 2022. The Petitioner’s counsel also agreed to submit a document regarding what, if anything, was paid by the Respondents toward the rent arrears as described in the Stipulation, and the Petitioner agreed someone would be at the Property the week of November 1st between the hours of 9:00 a.m. and 5:00 p.m. to effectuate repairs; the Petitioner’s attorney would advise Attorney Broge as to the time(s) the repair person would be at the Property. The OTSC ultimately was deemed fully submitted on November 22, 2022 and is ready for decision. The Court read the following papers on the OTSC: Order to Show Cause dated October 14, 2022 1 Respondent’s Affidavit, with exhibits (“Respondent’s Affidavit”) 2 Certification of “Poor Person” Status, submitted by Brett Broge, Esq 3 Attorney’s Affirmation in Support of OTSC, with exhibits (“Broge Affirmation”) 4 Letter dated October 14, 2022 from Petitioner’s counsel (“October 14, 2022 letter”) 5 Affirmation in Opposition, with exhibits (“Forman Affirmation”) 6 Affirmation in Opposition, with exhibit (“Teitelbaum Affirmation”) 7 Email exchange, last dated November 3, 2022 (three pages) 8 Attorney’s Reply Affirmation, with exhibit (“Broge Reply Affirmation”) 9 Letter dated November 15, 2022 from Terry S. Forman, Esq. (“November 15, 2022 letter”) 10 DISCUSSION According to the Respondent’s Affidavit, which was signed by Respondent Neilson, the Respondents, after having entered into the Stipulation, made one payment toward arrears to the Petitioner2 but could not make payments thereafter because Respondent Neilson came down with Covid-19 in early September and was unable to work, preventing him from making any further payments to the Petitioner (although the Respondent’s Affidavit indicates, in paragraph 8, that he was “now Covid free and…I hope that I will be cleared to return to work relatively soon and be back in a position to continue to pay the rent going forward,” and that Respondent Dolson was “currently employed and earning an income”). The Respondent’s Affidavit also claims the “Petitioner never made any of the requested repairs after August 9, 2022″ and he “was never notified that [he] was in default of the stipulated judgment” (Respondent’s Affidavit, paragraph 4) and stated, in paragraph 7, that the Respondents submitted an application for three months’ rental assistance through New York’s Emergency Rental Assistance Program (“ERAP”), which application was under review. He further claims, in paragraph 9, that “[i]f the eviction is allowed to go forward, my family and I will be left homeless. Two of our children have autism and a change of residency to a shelter would have a significantly negative impact on their conditions.” The Broge Affirmation repeats the allegations contained in the Respondent’s Affidavit. The Broge Affirmation also claimed “[o]n information and belief” that the Petitioner received payment for at least twelve months of rental arrears under the Landlord Rental Assistance Program but that the Respondents may be entitled to payments for three additional months of rent3. As a result, according to the Broge Affirmation, this action must be stayed while the Respondents’ ERAP application is pending (Part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c 417). The Broge Affirmation also refers to other sections of the law (such as RPAPL §§749 [3] and 753 [1]) that allow a court to stay the issuance or execution of a warrant of eviction. The Forman Affirmation addressed the Stipulation and noted that the Respondents only made one payment of $2,000.00 on September 4, 2022 and no other payments, as confirmed by the Teitelbaum Affirmation.4 Pursuant to paragraph 13 of the Forman Affirmation, the Respondents also defaulted in the submission to the Petitioner of a list of repairs needed at the Property; such list was to be submitted within ninety days of the date of the Stipulation (August 9, 2022). In an email exchange last dated November 3, 2022, Attorney Forman advised Attorney Broge that the Petitioner would have a plumber at the Property on November 3, 2022 between 8:00 a.m. and 10:00 a.m. to make certain plumbing repairs as discussed in court on November 1, 2022. In an email dated November 3, 2022 at 10:41 a.m., Attorney Forman advised the Court and Attorney Broge that the plumber went to the Property on the date and time scheduled but claims “the Respondent” (the email does not specify which Respondent) gave the plumber a difficult time, as a result of which the plumber was not comfortable being at the Property and, therefore, left.5 With respect to the Respondents’ ERAP claims, the October 14, 2022 letter (from the Petitioner’s attorney, Terry Forman, Esq.) observed that even if the Respondents could receive three months’ worth of rental payments, there were five additional months of unpaid rent that would remain unpaid. The Forman Affirmation clarified the ERAP issue even further. According to paragraph 19 and Exhibit A of the Forman Affirmation, and contrary to the assertions in the Broge Affirmation, Respondent Neilson already received fifteen months of rental payments for the Property through ERAP (application number A4J1U), covering the months of October 2020 through December 2021.6 The Forman Affirmation, in paragraphs 26 through 28 and Exhibit B, also observes that the COVID-19 Emergency Rental Assistance Program of 2021 (Part BB, Subpart A, section 9 [1] of Chapter 56 of the Laws of 2021, as modified by L. 2021, c 417) could pay, at a maximum, twelve months of rent arrears and three months of prospective rental payments, for a total of fifteen months of rental payments. Because the Respondents already received fifteen months of rental payments from ERAP and the Respondents cannot receive additional rental benefits, the Forman Affirmation claims any stay essentially would be futile and should be lifted. The Broge Reply Affirmation again asserts that because ERAP application number 1A1JN is still “under review,” all eviction proceedings against the Respondents must be stayed until the New York State Office of Temporary and Disability Assistance makes a determination as to eligibility for ERAP payments. The Broge Reply Affirmation also refers to RPAPL §753 (1) and claims the Court must consider various listed elements to determine whether the Respondents are entitled to a stay of the Warrant for a period of up to one year based on a claim that execution of the Warrant “would occasion extreme hardship to the [Respondents] or the [Respondents'] family if the stay were not granted” (Id.). DECISION The Respondents’ argument for a stay of the Judgment and the execution of the Warrant rests, primarily, on the claim that the pending ERAP application 1A1JN requires a stay of this action until the application is finally determined. This decision will address not just the ERAP argument but also the effect of the Stipulation and the Respondents’ claim that a stay should issue pursuant to RPAPL §§749 (3) and 753 (1). A. The Stipulation is valid and enforceable according to its terms, and the Petitioner, absent anything to the contrary, is entitled to enforce the Judgment and the Warrant. The parties entered into the Stipulation voluntarily, in open court. The Court questioned Respondent Neilson about the Stipulation, and he indicated he understood the terms, he agreed to abide by them, no one was forcing him to enter into the Stipulation, and he (for himself and Respondent Dolson) voluntarily agreed to the terms of the Stipulation. Our judicial system favors stipulations of settlement; stipulations generally are not to be set aside lightly unless one seeking to set aside a stipulation can prove there was fraud, collusion, a mistake, or an accident of some sort (see Hallock v. State of New York, 64 NY2d 224, 230 [1984]; see also Caroli v. Allstate Insurance Company, 100 AD3d 941, 943 [2d Dept 2012]). The OTSC contains no allegation of fraud, collusion, a mistake, or an accident in the formulation of and agreement to the terms of the Stipulation; in fact, and as noted, the Court examined Respondent Neilson to make sure he understood and agreed with all the terms and conditions of the Stipulation, and that he also could bind Respondent Dolson to the Stipulation.7 The Stipulation, as a result, remains in full force and effect as a valid resolution of this action between the parties. B. The general stay of an eviction proceeding once an ERAP application is filed is inapplicable to the present action. The legislation creating ERAP, as amended, generally prevents a landlord from commencing a holdover or nonpayment eviction proceeding if a tenant files an application for rental relief under ERAP “unless or until a determination of ineligibility is made” (Part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c 417). In addition, if a tenant applies for ERAP benefits after a landlord commences an eviction proceeding, the proceeding is “stayed pending a determination of eligibility” (Id.). Furthermore, “[e]vidence of a payment received pursuant to this act or a local program administering federal emergency rental assistance program funds may be presented in such proceeding and create a presumption that the tenant’s or occupant’s rent…for the time period covered by the payment has been fully satisfied” (Id.). The ERAP legislation, as amended, also states that “[a]cceptance of payment for rent or rental arrears from this program or any local program administering federal emergency rental assistance program funds shall constitute agreement by the recipient landlord or property owner: (i) that the arrears covered by this payment are satisfied and will not be used as the basis for a non-payment eviction” (Part BB, Subpart A, section 9 [2] [d] of Chapter 56 of the Laws of 2021, as modified by L. 2021, c 417). Section 9 (1) of the ERAP legislation (which was not modified by L. 2021, c 417) describes the maximum amount of rental payments that a landlord or tenant can receive under ERAP: “Payments shall be made for rental payments or rental and utility arrears8 accrued on or after March 13, 2020. No more than 12 months of rental and/or utility assistance for arrears and 3 months of prospective rental assistance may be paid on behalf of any eligible household” (Part BB, Subpart A, section 9 [1] of Chapter 56 of the Laws of 2021) (emphasis added). Although the Respondents claim that their “household may be eligible for at least three month’s rental assistance from the ERAP program (Respondent’s Affidavit, paragraph 7; see Broge Affirmation, paragraphs 23 through 25), the Forman Affirmation and the Teitelbaum Affirmation both show that the Petitioner was paid, and the Respondents received credit for, fifteen months of rental payments for the Property through ERAP (application number A4J1U), covering the months of October 2020 through December 2021 (paragraph 19 and Exhibit A of the Forman Affirmation, and paragraph 6 and Exhibit A of the Teitelbaum Affirmation). Respondent Neilson, in the Respondent’s Affidavit, never referenced those payments. As noted above, the ERAP legislation clearly states the maximum rental assistance an eligible household may receive is fifteen months of rental payments (twelve months of rental arrears and three months of prospective rental assistance). It is also clear Petitioner gave the Respondents credit for the fifteen months worth of payments paid by ERAP — the Petition in this action does not claim any rent is due and owing for the period of October 2020 through December 2021, which is the fifteen month time period covered by the ERAP rental payments (Petition, paragraph 5). While the ERAP statute provides that the filing of an ERAP application prohibits a landlord from commencing an eviction proceeding “unless or until a determination of ineligibility is made” and further provides that a pending eviction proceeding is “stayed pending a determination of eligibility” if a tenant files an ERAP application after commencement (Part BB, Subpart A, section 8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c 417), a number of courts have held that a court has authority to determine ERAP “eligibility” under specified circumstances (see Abuelafiya v. Orena, 73 Misc 3d 576, 580 [Suffolk Dist Ct, 3d Dist 2021] ["the (ERAP) statute inherently allows for the court…to determine 'eligibility'"]; see also Kristiansen v. Serating, 75 Misc 3d 331, 333 [Suffolk Dist Ct, 3d Dist 2022]; Hudson Avenue Housing Associates, LLC v. Howard, 75 Misc 3d 419, 426 [Glens Falls City Ct 2022]). Additionally, there is an emerging line of cases holding that a stay will not be enforced and can be lifted where a tenant already received a maximum ERAP award or where the potential ERAP payment(s) would not cover all of the tenant’s arrears (see, e.g., EG Mt. Vernon Preservation LP v. Duncan, 77 Misc 3d 1226 [A] *3 [Mount Vernon City Ct 2023] ["equity and fairness dictates that a lift of the (ERAP) stay is warranted for the months due and owing over the 15 months that ERAP would cover…(which would be) those rents above and beyond the eligibility period"]; CPM Tudor Village, LLC v. Atkinson, 77 Misc 3d 1214 [A] *3 [Suffolk Dist Ct, 3d Dist 2022] ["any stay arising out of the ERAP program is limited to 15 months and…the failure to pay rent after 15 months, even while awaiting an ERAP decision, is grounds to issue a warrant of eviction"]; Kristiansen at 334; Harmony Mills West, LLC v. Constantine, 75 Misc 3d 594, 604 [Cohoes City Ct 2022] ["(w)ithout a realistic possibility of receiving payments, the ERAP application is nothing more than a delay tactic to keep the landlord from exercising its constitutional right to possession and use of its property"]; but see 14 N. Highstreet, LLC v. Clowney, 76 Misc 3d 768, 773 [Mount Vernon City Ct 2022]; Robo LLC v. Matos, 75 Misc 3d 1211 [A] *2 [Civ Ct, Bronx County 2022]). In this action, it is clear the Respondents already have received the benefits of fifteen months of rental assistance paid through ERAP. Because the Respondents have received the maximum benefits — that is, fifteen months worth of rental assistance payments — the Respondents will not be eligible to receive any further rental assistance payments through ERAP. As a result, it would be futile and even bordering on the absurd to allow the ERAP stay to remain in place. This Court determines the ERAP stay, in this action, can and will be lifted. C. The Respondents are not entitled to the discretionary protection afforded under RPAPL §§749 [3] and 753 [1] RPAPL §749 (3) provides, in relevant part, that “[n]othing contained herein shall deprive the court of the power to stay or vacate such warrant for good cause shown prior to the execution thereof, or to restore the tenant to possession subsequent to execution of the warrant. In a judgment for non-payment of rent, the court shall vacate a warrant upon tender or deposit with the court of the full rent due at any time prior to its execution.” “Good cause has been determined to involve either fraud by the landlord or a demonstration that the tenant has a meritorious defense or involving a misunderstanding involving a settlement stipulation” (Abuelafiya at 578; see also Morris Ave Cornerstone LP v. Menifield, 68 Misc 3d 763, 765-766 [Civ Ct 2020]). In this action, the Court finds the Respondents have not established good cause to stay or vacate the Warrant. The Respondents claim the Petitioner failed to make repairs as required by the Stipulation, but the Respondents never submitted a list of repairs to the Petitioner within ninety days, as required by the Stipulation. When the Petitioner sent a plumber to the Property to make repairs, the Respondent(s) prevented the plumber from making repairs. There is no allegation of fraud by the Petitioner, there’s no demonstration of a meritorious defense for the Respondents, and there is no indication there was a misunderstanding involving the Stipulation. In fact, the Respondents failed to make payments required by the Stipulation. RPAPL §753 (1) also has been mentioned as a potential avenue of relief for the Respondents. RPAPL §753 (1) provides that a court may stay the issuance of a warrant to recover possession of a dwelling for a period of no more than a year if certain criteria are established (for example, the application for a stay is made in good faith; the tenant cannot find suitable similar premises in the “neighborhood” [as defined in Section 753 (1)]; the tenant made “due and reasonable efforts” to find another dwelling; or moving would cause “extreme hardship” to the tenant or the tenant’s family). Section 753 (1) lists various items a court must consider in determining whether refusal to grant a stay would cause extreme hardship to the tenant or the tenant’s family. That section also states that a court must consider any “substantial hardship” that a stay might impose on the landlord. Under RPAPL §753 (2), if a court determines a stay should be granted, there is a condition: “the person against whom the judgment is entered shall make a deposit in court of the entire amount, or such installments thereof from time to time as the court may direct, for the occupation of the premises for the period of the stay, at the rate for which the applicant was liable as rent for the month immediately prior to the expiration of the applicant’s term or tenancy…[and] such deposit may also include all rent unpaid by the occupant prior to the period of the stay.” In reviewing the Respondents’ OTSC, the Court is not convinced the Respondents are acting in good faith. The Respondent’s Affidavit states the “Petitioner never made any of the requested repairs after August 9, 2022″ and Respondent Neilson “was never notified that [he] was in default of the stipulated judgment,” but he fails to acknowledge that he was supposed to provide a list of repairs to the Petitioner within 90 days of the Stipulation (which, apparently, he didn’t), and he fails to acknowledge that if the Respondents failed to make the payments toward arrears as described in the Stipulation and/or failed to pay the current monthly rent in a timely manner, the Petitioner’s attorney could release the Judgment and the Warrant from escrow, without notice. Perhaps the most significant issue showing the Respondents may not be acting in good faith is the complete lack of acknowledgment that the Petitioner already received, and the Respondents received credit for, fifteen months of rental assistance payments through ERAP, the maximum allowable under the program. The Respondents also fail to show “due and reasonable efforts” to find another dwelling; in fact, there is no mention as to what, if any, efforts the Respondents have expended to find suitable housing for themselves and their children, and the Respondents have failed to specify how moving would cause “extreme hardship” to the tenant or the tenant’s family. In addition, RPAPL §753 (2) requires a court to make a deposit into court of the entire amount (or installment payments) of the amount required to occupy the premises; that amount, essentially, is measured by the monthly rent payable by a tenant. If a stay were granted, it is unlikely the Respondents would deposit the amount required by the Court. As noted previously, the Respondents failed to make any payments as required by the Stipulation other than $2,000.00, despite the fact that the Respondent’s Affidavit notes that he hoped to “be cleared to return to work relatively soon and be back in a position to continue to pay the rent going forward,” and that Respondent Dolson was “currently employed and earning an income.” The decision whether to grant a stay under RPAPL §753 (1) is not based solely on factors regarding a tenant; a court also must consider any “substantial hardship” to the landlord. It is clear in this case that the Petitioner has suffered substantial hardship. The Petitioner already has a judgment against the Respondents for $8,600.00, and the Petitioner has received no payments against that amount or against current rent other than $2,000.00 paid by the Respondents in September 2022. As a result of the above, the Court declines to exercise its discretion under either RPAPL §749 (3) or RPAPL §753 (1) to grant a stay of the Warrant. To the extent this Decision and Order does not specifically address any other of the Respondents’ claims or defenses, those claims or defenses are deemed denied. Now, upon reviewing and considering the Order to Show Cause, the Notice of Petition and Petition, and all prior proceedings, it is ORDERED, the application for an Order to Show Cause to stay or vacate the Judgment and the Warrant is denied, the Judgment and the Warrant remain in full force and effect, and the Warrant will be reissued immediately without stay. The foregoing constitutes the Decision and Order of this Court. Dated: March 2, 2023
