Abuelafiya v Orena

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[*1] Abuelafiya v Orena 2021 NY Slip Op 21247 Decided on September 17, 2021 District Court Of Suffolk County, Third District Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on September 17, 2021
District Court of Suffolk County, Third District

Mary Abuelafiya, Petitioner,


Paul Orena, Mary Orena, Respondents.

Index No. LT-152-20/HU
C. Stephen Hackeling, J.

Upon the following papers numbered 1-14

Read on this Order to Cause

Notice of Motion/Order to Show Cause and supporting papers 1-9

Notice of Cross Motion and supporting papers

Answering Affidavits and supporting papers

Affirmation in Opposition and supporting papers 10 -14

Replying Affidavits and supporting papers

Filed papers


The respondents, Paul and Mary Orena (hereafter "tenants"), move by application dated August 20, 2021, seeking to stay and/or vacate their warrant of eviction pursuant to New York RPAPL Sec. 749 (3) and also pursuant to New York's Emergency Rental Assistance Program (hereafter "ERAP") law and the U.S. Center for Disease Control (hereafter "CDC") order issued August 3, 2021 pursuant to regulation 70.2 implementing 42 USC Sec. 264.

The Undisputed Facts

It is either conceded or not disputed by the parties that the tenants rented the real property premises owned by petitioner Mary Abuelafiya ( hereafter "the landlord") at 3 Dolphin's Rise, Lloyd Harbor, New York, on August 24, 2019. The lease was in writing and for one year and one week running through August 31, 2020 at a monthly payment rate of $6,800.00. The tenants defaulted in making rent payments after March 2020. The landlord's 2020 non-payment petition was adjourned as a result of the Court's COVID closure until May 6, 2021. A warrant of eviction was issued May 26, 2021 as the tenants did not appear and did not file a COVID-19 Hardship Declarations prior to said date. The tenants assert they filed such a Declaration dated May 4, 2021 via fax but could not produce a written confirmation of same. To this date the Court has not received the tenants hardship declaration, although they have had multiple Court appearance opportunities to file same.

After service of the Sheriff' 14 day eviction notice, the tenants filed an Order to Show Cause dated July 15, 2021 seeking to vacate their default asserting the New York's Emergency Eviction and Foreclosure Prevention Act of 2020 moratorium. The tenants presently owe over $113,000.00 of rent. Said application was withdrawn after the U.S. Supreme Court ruled said statute unconstitutional. Prior to the withdrawal, the tenants conceded they own another house in Atlantic Beach, New York, but do not want to move there as their children are enrolled in school in Cold Spring Harbor. The tenants teenage son answered the door at the Atlantic Beach house, although there exist a dispute at to whether this house is presently rented to a third party, so as to prevent the tenants from utilizing same.

New York RPAPL Sec. 749(3)

The tenants initially request that this Court vacate its prior warrant of eviction for "good cause", pursuant to the provisions of New York RPAPL Sec. 749(3). 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. These circumstances do not exist in this case. This matter seems to fall squarely within the realm of the asserted "COVID-19" stay protections provided by the legislature. As such, the Court need not invoke its Sec. 749(3) discretionary authority to vacate its prior Order.

CDC Eviction Moratorium

The Court will deal summarily with the tenants CDC stay argument. The CDC eviction stay order (effective August 3, 2021), is a regurgitation of a similar predessor regulation which has been ruled invalid by several Federal Courts at all levels. These Courts have opined that with the expiration of the Corona Virus Aid, Relief and Economic Security Act ("CARES Act"), there exists no statutory authority contained in 42 USC Sec. 264 for the CDC to enact an eviction moratorium. See, Alabama Assoc. Of Realtors v. U.S. Dept. HUD, 141 Sp. Ct. 2320 (2021). Tiger Lily, LLC v. U.S. Dept. HUD et al, 992 F 3d 518 (Sixth Cir. 2021); Terkel v. Center for Disease Control & Prevention et al, 2021 W.L. 742877 (Dist. Ct E.D. Texas 2021). The dicta in these decisions opine that even if a Federal statute did grant such regulatory authority; the relationships between a landlord and a tenant within a single state's borders, is not a constitutionally allocated area that Congress may regulate. See, Tiger Lily, LLC v. U.S. Dept. HUD et al, cite supra, citing to Loretto v. Teleprompter Manhattan CATV Corp. 458 U.S. 419 102 S. Ct. 3164 (1982). The CDC's re issuance of a previous invalidated moratorium order is vexatious and contemptible.


The tenants next advance the argument that New York State's Emergency Rental Assistance Program law (hereafter "ERAP") provides for a stay of this eviction proceeding (Chapter 417 (A)(B3) of Chapter 56 of the laws of 2021). The tenants have applied for rental assistance and have produced proof of the initiation of said application in August of 2021.[FN1] Under the ERAP Program the State of New York (implemented via Sec. 99mm of the New York State Finance Law) intends to distribute billions of dollars of federal rental assistance aid. The criteria for eligibility for said funding is as follows:

1. An individual in the tenant/landlord household qualifies for unemployment or experienced a reduction in household income, or experienced financial hardship due to COVID-19, and2. The household income is below 80% of area median income, and3. An individual in the household can demonstrate a risk of experiencing homelessness or housing instabilities. (Emphasis added.)

To be eligible, the tenants must meet all the above stated criteria. The law does not place a limitation on how much money each applicant can receive but instead limits same only by the number of months in arrears (12-15). The landlord does not wish to participate in the "ERAP" application.

Effective September 2, 2021, New York State amended and supplemented its prior ERAP law to provide an automatic stay for any tenant who files an application for ERAP, which continues until the ERAP State Agency makes a determination on eligibility. The Court is at a loss to understand how this new statute addresses the due process issues raised by the U.S. Supreme Court in Chrysafis v. Marks, Sup. Ct., 2021 WL 3560766 (8-12-21), which struck down New York's prior moratorium statute which allowed tenants a right to unilaterally grant themselves an indeterminate stay without requesting same from a Court. Under paragraph 8 of ERAP, the tenants again are authorized to unilaterally grants themselves a stay without mention of a mechanism for Court review unless the eviction involves (see ERAP paragraph 9) substantial infringement on other tenants rights or intentional damage to leasehold premises.

New York law requires this Court to construe its statutes so as to avoid constitutional impairment. See generally, People v. Liberty, 64 NY2d 152 (NY 1984), United States v. Rumely, 73 S. Ct. 543 (1953), Collado v. Bikari, 27 Misc 3d 166 (Suf. Co. Dist. Ct. 2009). As such, it need not delve into the realm of constitutional propriety as this matter can be decided upon its facts by simply determining that the statute inherently allows for the Court to also be allowed to determine "eligibility". The Court finds as a matter of fact that the tenants are ineligible for ERAP funding as they are not experiencing housing instability by virtue of the fact that they own a second house they may relocate to. Eligibility having been determined; the ERAP stay is vitiated.

Hardship Moratorium

Part C of the statute that amended the ERAP statute also amended New York's "COVID Hardship Moratorium" statute granting a stay until January 15, 2022 upon the filing of a "hardship declaration". In an effort to correct the constitutional infirmaties determined by the U.S. Supreme Court in its Chrysafis decision the law was amended to provide an opportunity for landlords to make a written motion to challenge a tenant's declaration of COVID hardship. The Court need not address this issue as the "law of this case" is that the tenants had an opportunity to establish their right to a hardship stay and withdrew said application. See generally, Ramanathan v. Aharon, 109 AD3d 529 (N.Y.AD2d Dept. 2013) citing to Martin v.Cohoes, 37 NY2d 162 (NY 1975) concerning establishing the "law of the case". Absent the filing of a hardship declaration or a pending application to implement same, no stay exists.

The Court notes that the moratorium statute only vitiates this Court's authority to execute a new warrant of eviction. It does not prohibit this Court's denial of the tenant's application to seek a Court Ordered stay of this Court's prior warrant of eviction.

Accordingly, the tenants' application to vacate their default and stay their eviction is denied. No further 72 hour notice need be served by the Sheriff.

Dated: September 17, 2021

Hon. C. Stephen Hackeling, J.D.C. Footnotes

Footnote 1:The landlord asserts that the ERAP application was denied. The tenants assert said denial was caused by landlord's providing erroneous information and that said decision is on appeal.