Procedural History On December 18, 2020, Kennedy Plaza Tower, LLC (hereinafter referred to as ‘petitioner’ and or ‘landlord’) filed a Notice of Petition/Petition to Recover Real Property against Dean Leffler (hereinafter referred to as Mr. Leffler and / or ‘tenant’ / ‘respondent’) seeking a final judgment awarding possession of apartment #1001 located at 2 Kennedy Plaza in Utica. The petitioner also requested the court issue a warrant of eviction to remove the tenant from said premises, due to Mr. Leffler being a holdover tenant. The holdover proceeding is based upon a ninety (90) day notice having been served upon Mr. Leffler on December 31, 2019, which demanded he vacate said premises on or before April 30, 2020. The landlord submitted further proof that the tenant was properly served with all required documents to initiate this proceeding which included a notice that an initial appearance was scheduled for January 19, 2021 at 11:10 AM. The court will note, that after reasonable attempts were made to effectuate personal service on January 4th, January 5th and January 7th of 2021, the notice of petition along with all other relevant documents were affixed to the respondent’s door followed by the required mailings. Proof of service was filed with the court on January 11, 2021. On January 15, 2021, Mr. Leffler filed a handwritten “Hardship Declaration” stating that he was unable to pay rent due to COVID-19 related issues and was under “precautionary isolation per CDC guidelines”. As a result of this submission, the proceedings were re-scheduled until March 26, 2021, and such delay in the proceedings complied with the directives set forth in Administrative Order 340/20. On March 26, 2021, Mr. Leffler did not appear. The matter was then adjourned to April 23, 2021, and at the conclusion of the proceedings the attorney for the petitioner was directed to serve notice upon the tenant setting forth the adjourned date along with a hardship declaration form. Proof of service of these documents was filed on April 7, 2021. On April 23, 2021, both of the parties appeared before the court, at which time the court denied the tenant’s motions, which had been filed on March 22, 2021, in their entirety, and further acknowledged receipt of the tenant’s hardship declaration form. The matter was then adjourned for a control date of April 29, 2021, due to the moratorium on evictions and the parties were notified that upon a future date being scheduled notices to appear would be sent out accordingly. Subsequently, on September 9, 2021, a notice was sent to the parties setting forth that on September 2, 2021, Chapter 417 of the Laws of 2021 was signed into law which extended the moratorium on evictions until January 15, 2022. As a result, the matter was then placed on a control calendar for January 15, 2022. On January 27, 2022, notices were then issued to the parties advising that this case was being placed back on the court’s calendar, and that a virtual conference would be conducted on February 7, 2022. Since that time, there were several appearances and adjournments granted due to a pending application with the Emergency Rental Assistance Program (ERAP) which in essence stayed the proceedings. The ERAP application which stayed these proceedings was filed on February 21, 2021. On June 9, 2023, the attorney for the petitioner argued that a further stay of the eviction proceeding was not warranted as the petitioner was not seeking any past monies due, and even if ERAP paid the maximum amount it would not cover the total amount owed. Essentially counsel’s argument was that although an ERAP was pending any stay should be lifted and a warrant of eviction should be granted. Based upon such arguments, a hearing was scheduled for August 3, 2023 at 11:00 AM to determine whether a stay of the proceedings is warranted, due to the pending ERAP application, and whether an eviction should be granted based upon the holdover petition. The court further notes, that throughout the duration of the proceedings the tenant requested to appear virtually due to underlying medical conditions. Although medical documentation to support the tenant’s request was never received, the court accommodated Mr. Leffler and allowed him to appear virtually including for trial. Given the extended time frame these proceedings have been pending, the court finds it imperative to solidify prior determinations as it relates to the respondent’s motions herein. As such, prior to addressing the most recent filings and making finds of fact and conclusions of law relative to the hearing conducted on August 3, 2023, the court will review the motion for discovery along with the motion to dismiss filed on March 22, 2021. Motion for Discovery / Motion to Dismiss filed on March 22, 2021 On March 22, 2021, Mr. Leffler filed a “Motion for discovery” along with a “Motion to Dismiss” and the attorney for the landlord filed an “Affirmation in Response and Opposition to the Respondent’s Motion to Dismiss / For Discovery and Adjournment” on April 15, 2021. On April 23, 2021, both parties appeared before the court, at which time the court denied the tenant’s motion(s) in their entirety and further acknowledged receipt of the tenant’s declaration of hardship. To ensure a complete record, the court has reviewed the prior ‘motion’ filed by the tenant on March 22, 2021 and re-affirms the prior ruling denying all relief demanded therein. Specifically, the tenant’s request for certain material as part of ‘discovery’ was unrelated to this proceeding. In addition, there were only unsupported assertions pertaining to claims of forgery, discrepancies in escrow accounts and general ‘harassment’ allegations by the landlord. Furthermore, despite the allegations made by Mr. Leffler, the procedural history of this case demonstrates all COVID-19 related statutes along with Administrative Orders have been adhered to not only prior to March 22, 2021, but during the entirety of these proceedings. Also, it was clearly established that Kennedy Plaza Tower, LLC has standing to file this proceeding as such entity is named as the ‘Landlord’ on the lease agreement signed by the tenant. This issue was also addressed during the course of the hearing on August 3, 2023, as set forth below. In addition, the court finds no merit to the tenant’s claims that the petitioner did not follow the service requirements pursuant to RPL §226-c. Mr. Leffler stated that the affirmation of service for the ninety-day notice is invalid as it was served by Megan Rhodes who is an employee of Kennedy Plaza Tower, LLC. Upon review of the record and court filings, Megan Rhodes did in fact sign an affirmation that she had served correspondence upon on Mr. Leffler stating that the lease agreement entered between the parties would not be renewed upon its expiration date of April 30, 2020. The court notes, there is no preclusion for a party to an action, or representative for that matter, from serving a predicate notice terminating a tenancy. Such document does not commence any legal proceeding rather it is merely a pre-requisite for the initiation of a summary proceeding at a subsequent time. Thus, the ninety-day notice is valid and meets all legal requirements to terminate the underlying tenancy. The tenant’s further argument that the predicate notice was defective, as it incorrectly set forth the date that the tenant’s lease would expire is also flawed. The ninety-day notice states the lease expired on April 30, 2020. While the “Rider to the Lease Agreement” signed by the parties on May 24, 2019 extended the tenancy until May 24, 2020, the petitioner filed the summary proceeding after the lease had expired. The fact remains that on December 31, 2019, the tenant had notice that after ninety-days an eviction proceeding would be filed and this action was commenced well after the ninety-day period lapsed. RPL §226-c provides further support that petitioner gave respondent an adequate and valid notice of termination. Petitioner also extended the tenancy for a period to match the provisions of the lease agreement to May 25, 2021. The earlier date on the 90-day notice does not automatice invalidate the notice. As such, the tenant’s occupation of the premises became illegal on May 25, 2021, allowing the landlord to commence a holdover proceeding thereafter. (Langdoc v. Warden, 71 Misc.3d 211 [Chohes City Ct., 2021]) Lastly, the tenant’s assertion that the landlord did not adhere to RPAPL §733 also fails. Pursuant to RPAPL §733, “a tenant must be served at least ten and not more than seventeen days before the time at which the petition is noticed to be heard”. The affidavit of service clearly states that on January 8, 2021, the notice of petition/petition was mailed to the tenant after three unsuccessful attempts of personal service. All such attempts occurred within the required timeframe as the petition was made returnable before the court on January 19, 2021. The tenant did not contest the validity of service at the hearing on August 3, 2023. The tenant further alleged on the prior motion papers that the eviction proceeding was retaliatory in nature as there were prior “attempts at false evictions”. Specifically, that on July 17, 2019, a notice terminating the lease agreement had been provided by the landlord to the tenant based upon material non-compliance with lease provisions. The court will note, the lease violation notice stated the tenant: failed to comply with mandatory unit inspection, modified the unit without consent of the landlord and covered sprinkler heads. RAPL §223-b prevents landlords from suing to recover real property from a tenant who “has acted in good faith to secure or enforce [his or her] rights under the lease”. (Ghadamian v. Channing, 295 AD2d 127 [1st Dept. 2002] The tenant’s proffer does not support this affirmative defense. Specifically, Mr. Leffler did not allege that this proceeding resulted from asserting any rights under the lease agreement. Rather, the landlord legitimately made prior efforts to gain the tenant’s compliance with the lease provisions. At the hearing conducted on August 3, 2023, the tenant did not renew or bring forth any additional evidence for this affirmative defense. Motions Considered Prior to Commencement of Trial on August 3, 2023 Prior to the commencement of the hearing, the court addressed on the record various pre-trial requests/’motions’ that had been made by the respondent. This included the following: an additional motion to dismiss filed on February 13, 2023, based upon ‘new evidence’ (2) motion to dismiss filed on February 13, 2023, based upon stay provisions related to New York State Emergency Rental Assistance Program1 (3) Motion to recuse filed on July 27, 2013 (4) Motion requesting a jury trial filed on July 27, 2023. While all of the motions were denied on the record, except the issues relative to the pending ERAP, the following findings further supplement the determinations made. a. Motion to Dismiss based upon ‘New Evidence’/Stay provisions per ERAP On February 13, 2023, the tenant filed a subsequent “Motion to Dismiss Due to New Evidence” along with the attorney for the landlord having submitted an “Affidavit in Response” dated February 13, 2023. Contained within the moving the papers Mr. Leffler alleges various documents were received as a result of a request being made pursuant to the Freedom of Information Law (FOIL). The documents included W-9 forms, authorization for automatic deposits along with a rent ledger. The court agrees with the arguments in the petitioner’s answering papers, in that the tenant’s arguments are without merit as there are unsubstantiated allegations of fraud, violations of Administrative Orders along with a failure to assert legal standing. The court has previously addressed these assertions and reaffirms its prior decisions. The ‘new evidence’ does not require modification of prior findings. The only new substantive argument contained within the tenant’s motion relates to whether the landlord can continue with this eviction proceeding despite a pending ERAP application. In this matter the tenant submitted ERAP relief on February 21, 2022 [Application Number: 01BVH] and neither party contests the absence of an ERAP determination. On June 9, 2023, the attorney for the landlord argued that despite the pending ERAP application, any stay relative to this proceeding is not applicable under the New York Emergency Rental Assistance Program of 2021. On August 3, 2023, counsel further argued that Kennedy Tower LLC has accepted no money through ERAP, both parties have complied with requests made by the program for certain documentation, and ERAP would consider such application ‘last’ due to the subsidized nature of the housing. Mr. Levitt also argued that even if ERAP paid funds, it would not cover a substantial amount of back rent due, which in turn allows for this summary proceeding to continue. The tenant argued the petitioner ‘had no grounds’ to be in court as they previously accepted funds from New York State in excess of $100,000.00 in violation of the ‘law’ and administrative orders. Mr. Leffler added that the petitioner and counsel did not have ‘clean hands’ requiring dismissal of the action. Upon review of all applicable statutes and arguments of the parties, the court has determined to lift the stay as it relates to this proceeding as no grounds exist to preclude the issuance of a warrant of eviction. To support this conclusion the court relies upon the plain language of Part BB, Section 8, as amended by L 2021, c417, part C, subpart A, Section 4 entitled “Restrictions on Eviction” which sets forth the following: “…proceedings for a holdover or expired lease, or non-payment of rent or utilities that would be eligible for coverage under this program shall not be commenced against a household who has applied for this program or any local program administering federal emergency rental assistant program funds unless or until a determination of ineligibility is made.” the statute goes onto state: “[If such eviction proceedings are commenced]…..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.” The court will breakdown each provision to allow for comprehensive findings herein. The initial language concerning restrictions on evictions, precludes a summary proceeding from being commenced if an ERAP application has been made, while the second provision provides for a stay of actions where an ERAP application is made after commencement. It is important to further recognize Section 9 of ERAP which states “payments shall be made for rental payments or rental and utility arrears 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”. The court agrees with the finding in Greenburgh Housing Authority v. Porter, ___ NYS3d ___, 2023 WL 2640351, 2023 NY Slip Op 23076 [Town of Greenburgh Just. Ct. 2023]) that when reading the “Restriction on Eviction” portion of the statue in conjunction with the “Payments” portion, the statute prohibits “the commencement of a non-payment [or holdover] proceeding against a renter who has applied for ERAP and has fifteen months or less of arrears”. In the event the tenant had more than fifteen months of arrears the landlord may commence a summary proceeding in spite of a pending ERAP application as there are certain months not eligible for coverage under the program. Turning to the second provision, the statute provides for a stay of the proceedings post-commencement, and the parties are awaiting a determination of eligibility of an ERAP application. Tenants, however, cannot enjoy perpetual stays while awaiting ERAP determinations. The plain language of the statute supports this determination as it clearly connects the stay to the eligibility window of fifteen months. Although caselaw finds itself in a sort of REM phase of jurisprudence, trial level courts have provided some lucid decisions on this issue. In EG Mt. Vernon Preservation LP v. Duncan, 77 Misc.3d 1226(A) [Mount Vernon City Ct., 2023], it was held “Equity and fairness dictates that a lift of the stay is warranted for the months due and owing over the 15 months that ERAP would cover” and the intent of the legislation “was only to provide a stay of evictions for occupants eligible for coverage”. After undergoing an analysis of the ERAP statute, the court in Horizon Realty of Mt. Vernon, LLC v. Dabbs, 77 Misc.3d 1233(A) [Mount Vernon City Ct., 2023], also held that while “some 18 months after submitting his [ERAP] application, respondent’s application remains pending. His eligibility has not been determined and he has not received a provisional approval letter. Based upon equity considerations, this court lifts the ERAP stay at this time.” Here, the underlying proceeding is based upon the tenant holding over, the circumstances are quite similar, and the same principles apply. As such, since the ERAP application in this matter was made on February 21, 2022, the maximum period of eligibility would only extend to May of 2023. Therefore, since the applicable stay window has passed, the court shall proceed in determining whether it should issue a warrant of based upon the proof submitted. While the petitioner has not received any rent from the tenant in over three years, any eligibility for subsidies through the Officer of Temporary and Disability Assistance or Section 8 does not preclude lifting the stay imposed by ERAP. (Bay Park Two-LLC v. Pearson, 77 Misc.3d 534 [Civ. Ct., Kings County, 2022]) b. Motion for Jury Trial/Motion to Recuse filed on July 27, 2023 On July 27, 2023, the tenant filed a ‘Motion to Request Constitutional Right to Jury Trial’ along with request for ’90 days to prepare’. The general rules is that respondents in summary eviction proceedings have a common law right to trial by jury. N.Y. Const. art. I, §2; Glass v. Thompson, 51 A.D.2d 69, 379 N.Y.S.2d 427 [2nd Dept. 1976]. RPAPL also authorizes jury trials in summary eviction proceedings. RPAPL §745(1) provides that trials will be held before a judge unless, “at the time the petition is noticed to be heard, a party demands a trial by jury, in which case trial shall be by jury.” Courts have also denied tenant’s requests for a continuance and leave to file a late jury demand as the delay was caused by their own lack of due diligence. (Dexter 345 Inc., v. Belem, 37 Misc.3d 134(A) [1st Dept., 2012] Upon due consideration, the court has utilized its discretion and denies the request for a jury trial as the tenant did not make such a demand at an earlier time, and respondents must make a request of this nature at the time the petition is noticed to be heard. Respondent failed to make a request for a jury trial during the two and half year pendency of this matter. In addition, upon review of the various filings and proceedings which have occurred, the tenant has failed to raise any triable issue of fact for a jury to consider. (General Elec. Capital Corp. v. Loretto-Utica Residential Health Care Facility, 77 AD3d 1468 [4th Dept. 2010]) In a holdover proceeding the issues are more legal in nature as determinations are limited to whether the party sought to be removed is a tenant, if the tenant is holding over after the expiration of the term of the lease without the required permission and if the tenancy expired prior to the time the petitioner commenced the summary proceeding. Respondent has admitted to entering into a one-year lease on May 24, 2019, the terms of said agreement expired on May 23, 2020, and that the landlord provided notice of their intention to not re-new/terminate the lease agreement through a ninety-day notice dated December 31, 2019. Given the multitude of meritless claims raised by the respondent, the court suspects that the respondent may wish to subvert the judicial process by making a demand for a jury on the eve of trial. Mr. Leffler has also requested this court recuse in this matter. The tenant asserts that recusal would be appropriate as on June 9, 2023 the court inquired of the respondent as to whether “dropping a financial claim would make any effect on the action”. Mr. Leffler further states such a comment equates to giving legal advice to counsel for the petitioner. The record does not support the assertion made by Mr. Leffler. As such, the court finds no basis for recusal. The court merely recited an offer made by petitioner’s attorney to resolve the pending matter. The tenant further references an unrelated matter upon which his motion for recusal is brought. Specifically, the tenant cites to the matter of Leffler v. Sunnyside Properties [SC-192-20/UT], a small claims proceeding that the court chose not to preside over based solely upon the defendant in that matter. The recusal did not result from Mr. Leffler’s involvement in that proceeding. As such, this court found that it could remain fair and impartial in this matter and there is no reason for disqualification as defined by 22 NYCRR 100.3 or pursuant to Judiciary Law 14. (Caplash v. Rochester Oral & Maxillofacial Surgery Associates, LLC, 63 AD 3d 1683 [4th Dept. 2009]) The tenant’s motions for recuse is denied. Hearing On August 3, 2023, the parties appeared before the court, at which time the petitioner presented one witness namely, Sivonne Woods. Ms. Woods testified that she is currently employed by Commercial Rental Management, Inc. who manages the Kennedy Plaza Tower apartment complex. The witness further stated that she is familiar with Mr. Leffler along with the agreement that he entered into with Kennedy Plaza Tower, LLC to lease apartment #1001. Ms. Woods further explained that the lease agreement expired on May 23, 2020, and never renewed after such time, and the document contains all the rules and regulations as it relates to terminating the lease itself. The witness also testified that petitioner served Mr. Leffler with a Notice of Petition to Recover Real Property along with a Petition on January 8, 2021, as reflected in the affidavit of service filed with the court. The witness testified that it provided the tenant with notice to terminate the lease agreement, dated December 19, 2019. During the course of Sivonne Wood’s direct testimony, the attorney for the petitioner offered the following Exhibits which were received into evidence: Petitioner’s Exhibit #1 — “Lease Agreement” between Kennedy Plaza Tower, LLC and Dean Leffler for apartment 1001 located at 2 Kennedy Plaza Tower dated May 24, 2019 Petitioner’s Exhibit #2 — Notice of Petition to Recover Real Property (Holdover), Notice to Appear Virtually, Notice to Respondent Tenant, Petition to Recover Real Property (Holdover), ‘Ninety Day Notice’ dated December 31, 2019, Affidavit of Service of Notice of Quit, Affidavit of Service for documents commencing the action Mr. Leffler did not object to the court receiving such documents into evidence. However, an objection was made as to the manner which the notice of petition along with the petition were served. Specifically, the tenant stated that although he was made aware of the proceedings, the documents were “never put in my hand”. While petitioner personally served the notice terminating the lease, it effectuated service of the Notice of Petition and Petition by way of “affix and mail” service. The absence of a lease termination relieves the petitioner from any obligation to provide notice to a governmental agency of the eviction proceeding. Further, the court recognizes that petitioner served the tenant a proper 90-day notice on December 31, 2019. Commencement of the eviction proceeding followed. Upon review of the affidavit of service filed on January 11, 2021 (contained within Petitioner’s Exhibit #1), petitioner made three attempts to personally serve the tenant prior to affixing the paperwork to the door of respondent’s apartment. The court finds all attempts of personal service were conducted at reasonable times. In addition, the petitioner appropriately mailed process via certified mail and regular mail on January 8, 2021, thus, fulfilling all of the service requirements pursuant to RRAPL §735(1). Tenant’s remaining arguments offer no weight or support for dismissal of the action. On cross-examination, Ms. Woods stated that she began her employment with Commercial Rental Management, Inc., on April 5, 2021, as Office Manager. The witness further stated that her prior experience as an office manager included employment at the Boy Scouts of America as well as at The Stanley Theater. Ms. Woods stated that while being employed at The Stanley Theater her job duties included managing records, marketing as well as conducting fundraising efforts. The witness further testified that while not having any experience with housing laws, that upon being hired by the petitioner, she attended training seminars pertaining to fair housing regulations. This also included becoming familiar with tax laws/tax benefits associated with public housing. Ms. Woods further stated that she is familiar with Megan Rhodes, who served the original ninety-day notice, as she was employed by Commercial Rental Management, Inc. when she began her employment. Ms. Woods also stated while not having personal knowledge of the lease subject to this proceeding, that the terms and conditions were “standard” used for all tenants. Once the witness’s testimony concluded, Mr. Leffler requested the court disregard all such testimony, as the witness was “unschooled” in housing laws nor possessed any knowledge or education in this regard. The court denied the respondent’s request and in fact found the witness to be very credible, insightful, and truthful. Mr. Leffler expressly declined the right to testify in the proceeding and rather relied upon his closing remarks. The court then heard oral argument from each of the parties to support their respective positions. Mr. Leffler argued that the petition should be dismissed as the original filing did not name the correct owner of the premises, permission was not obtained to terminate the lease through Housing and Urban Development pursuant to Section 236, and the petitioner received monies from New York State for rent which was “in violation of the law”.2 The court then reserved decision to allow for a written decision. The court finds the petitioner has established by clear and convincing evidence all necessary requirements for this court to issue a warrant of eviction based upon RPAPL Section 232-c governing holdover tenancies. Simply put, when a tenant holds over after the expiration of the lease terms, a landlord does not need to demonstrate anything other than that the tenant has remained in said premises after such time. As it has long been held, “upon the expiration of the lease agreement, it is the obligation of a tenant to vacate from the demised premises, inasmuch as his or her rights continue in possession thereof have expired.” (MH Residential 1, LLC v. Barrett, 871 NYS2d 805 [1st Dept. 2008]) The petitioner has demonstrated that it provided Mr. Leffler proper notice terminating the lease agreement (Petitioner’s Exhibit #2), and that Mr. Leffler continues to have a duty to vacate the premise. While the tenant maintains that the eviction proceeding should be dismissed based upon the failure to notify HUD of the lease being terminated, said argument has no merit. The landlord/tenant relationship between the parties began upon the lease agreement of May 24, 2019 and continued through its expiration on May 23, 2020. As such, Kennedy Plaza Tower, LLC did not “terminate” the lease between the parties during its term, rather, it declined to continue or renew the tenancy upon its expiration. Given that no lease existed when petitioner commenced the summary proceeding, the landlord properly filed a plenary action for the recovery of use and occupancy. (Underhill Ave. Realty, LLC v. Ramos, 49 Misc.3d 155(A) [App Term, 2nd Dept. 2015] Furthermore, the initial proceeding properly sets forth Kennedy Plaza Tower, LLC as the petitioner and there is no evidence the petitioner has accepted funds in violation of any law, rule or regulation. The pending ERAP application does not serve as an impediment to prevent a warrant from being issued for the reasons set forth above. Based upon the findings herein, the petitioner’s application seeking a warrant of eviction is hereby granted and will be issued in conjunction with this decision. So Ordered. NOTICE THE PARTIES HAVE 35 DAYS FROM ENTRY HEREON TO APPEAL THIS DECISION AND ORDER OF THE COURT Dated: August 11, 2023
