Bank of N.Y. Trust Co., N.A. v Courtney

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Bank of N.Y. Trust Co., N.A. v Courtney 2022 NY Slip Op 34539(U) August 15, 2022 Civil Court of the City of New York, New York County Docket Number: Index No. 59953/19 Judge: Karen May Bacdayan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX FILED: NEW YORK CIVIL COURT - L&T 08/15/2022 09:49 AMNO. NYSCEF DOC. NO. 42 LT-059953-19/NY [HO] RECEIVED NYSCEF: 08/15/2022 CIVIL COURT OF THE CITY OF EW YORK COUNTY OF NEW YORK: HOUSING PART F THE BANK OF EW YORK TRUST COMPANY , .A. AS TRUSTEE FOR A D FOR THE BENEF IT OF THE CERTIFI CATE HOLDERS OF M LTlCLASS MORTGAGE P S-THRO UGH CERTIFICATES CHAS FLEX TR ST SERlES 2007-MI Index o. 59953/19 DECISIO /ORDER Petitioner, Motion Sequence Nos. 1 and 2 -againstTODD COU RT EY, CAROLI E DAVIS, CARSO , PASCAL AKA PASC L CA RSO , CAROLI E CO OR, LISA FORSBERG , JOHN DOE-JA E DOE Respondents . HON KAREN MAY BACDA YA , JHC Hinshaw & Culb ertson llI'(Milchell Zipkin, Esq.), for the petitioner Aaron Morris Schlossberg, Esq., for the respondent-Todd Courtney Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by YSCEF Doc o: 4-41. PROCEDURAL HISTORY A D BACKGROU D This is a summary holdover proceeding fo llowing the completion of a foreclosure action. The proceeding is predicated on a 90-day notice to quit pursuant to RPA PL 1305 and RPAPL 713 (5). There is a long and storied history to the proceeding whi ch was commenced in the spring of 2019. The proceeding was previously se nt to the trial part, w here it was returned to the resolution part to be calendared for a traverse hearin g. There have been numerous delays including those occasioned by necessary alterations to court procedures during the height of the COV ID-19 pandemic, the filing of a Covid Emergency Eviction and Forec losure Prevention Act (CEEFPA) hard sh ip declaration which occasioned a stay of the proceedin g until January 15 , 2022, and cun-entl y the automatic statutory stay imposed by the filing of an merge ncy Rental Assistance Program (''ERA P") application in Ma rch 2022 . (L 2021 , c 56, part BB, subpart A, 8, as amended by L 202 1, c 417, part A, § 4 · dmin Order of Chief Adm in Judge of Cts AO/34/22.) 1 of 5 INDEX FILED: NEW YORK CIVIL COURT - L&T 08/15/2022 09:49 AMNO. NYSCEF DOC. NO. 42 LT-059953-19/NY [HO] RECEIVED NYSCEF: 08/15/2022 Petitioner has moved to vacate the automatic stay as, by the plain language of the statute, respondent is not entitled its benefit. Respondent has opposed petitioner s motion as procedurall y defective in that petitioner's attorney proffers legal arguments in his affirmation in support of the motion. Respondent also sub ·tantively opposes petitioner's motion countering that the Office of Temporary and Disabil ity Assistance ("OTDA") alone, and not this court, has the authority to determine whether an applicant is el igible for the program or not, which, in either case would resul t in dissolution of the stay. Respondent argues that, assuming arguendo that the court does have such authority, as an "occupant," the plain language of the statut brings him under the prot ctive umbra of the automatic stay . Respondent further argues that the stay should remain in ffi ct because the stay applies to occupants in both holdo ver and nonpayment proceedings and '[a]ny ambiguity in el igibi lity criteria promulgated by the commissioner shall be resolved in favor of the applicant when determi ning eligibility" (internal quotations omitted) ." (NYSCEF Doc No. 35, respondent's memorandum of law at 6.) At the outset, the court gives li ttle weight to respondent's argument that petitioner's motion is fatally defective for want of a separate memorandum of law. The court will overlook this common practice as a nonprejudicial inegularity which does not deprive respondent of any substantive rights . (CPLR 200 I.) Moreover, respondent did not object to the form of petitioner's papers until July 4, 2022 when opposition to the motion was filed well past the 15 day window during which to object to defects, which defects shall be deemed waived if, as here, no prejudice befal ls a party. (CPLR 210 1 [f].) DISCUSSION This court has previously held that it has the authority to consi der whether or not to vacate an ERAP stay. (5 th & 106th St Assoc. , LP v Hunt, 2022 ry Slip Op 22205 [Civ Ct, New York County 2022]; see also Laporte v Garcia 2022 Y Slip Op 22126, *l [Civ Ct, Bronx County 2022]; 2986 Briggs LLC v Evans, 2022 NY Slip Op. 50215 [ ] [Civ Ct, Bronx County 2022].) The comi respectfu lly disagrees with courts of concurrent jurisd iction, cited by respondent, which have held to the contrary. Indeed, to find otherwise woul d raise constitutional issues analogo us to those at issue in Chrysafis v Marks, 594 --US --, 14 1 S Ct 2482 (202 1). In Ch,ysafis, the Covid Emergency Eviction and Foreclosure Prevention Act ("CEEFPA") was enjoined because it did not allow a landlord to challenge a tenant' s self-certified experience of a hardship wh ich resulted in an automatic stay of proceedings. CEEFPA as modified by the L 2 of 5 INDEX FILED: NEW YORK CIVIL COURT - L&T 08/15/2022 09:49 AMNO. NYSCEF DOC. NO. 42 LT-059953-19/NY [HO] RECEIVED NYSCEF: 08/15/2022 2021 , c 417, passed just three weeks after the deci ion in Ch,ysa.fis, addressed the Supreme Court's due process concerns and allowed for a motion to be made before the cou11 to determine whether the tenant was, in fact, enti tled to the conti nuation of an automatic stay occasioned by the filing of a hardship declaration. Petitioner argues: ·· ... [I] in contradiction of th decision in Chrysa_fis .. . [r]espondent has b come a 'judg in his own case,' and created an artificial and indefinite stay which only serves to preclude property owners, such as Petitioner, from timely completing eviction actions ." (NYSCEF Doc No. 5, petitioner's attorney 's affirm atio n in support 48.) Similarly, this court has found, in the context of ERAP, the tenant "se lf-attest[s] " to eligibility for ERAP funding and receives an automatic stay of litigation in a proceeding as a result. (L 2021 , c 56, part BB, subpart A, § 6 [6].) Thi stay cou ld conceivabl extend until September 30, 2025 when the ERAP statute expire . Y tate Finance Law · 99-mm, as amended by the L 2021, ch 56, Part BB, supart A, § 3.) Thus a landlord must be able to challenge the automatic ERAP stay, and the court must determine upon that motion whether the tenant has made a showing that it is entitled to the stay, or ri sk infringing on petitioner's due process rights. Respondent's reli ance on Barton v Bixler, 2022 NY Slip Op 50228 (U), 74 Misc 3d 1226(A) (Dist Ct a sau County 2022) is misplaced. Bixler invol ed two questions : 1) Whether an unfund d agency is constitutiona lly u tainable; and 2) whether an alternative remedy program such as ER.AP, which temporarily limits access to coutt and diverts litigation to an adm ini strative agency, vio lates due process. Only the second issue is relevant here. Respondent argues that Bixler has " debunked" petitioner's argument that this comt may hear a motion to vacate an ERAP stay and that only OTDA shall be the arbiter of el igibi lity . (NYSCEF Doc o. 35, respondent"s memorandum of law, at 8.) otably missing from respondent' extensive block quote from Bixler is the language immediately following the sentence to which respondent c.ites which states in relevant part: " .. . [T]he Court .. . opine[s] that any alternative remedy program must still comport with the [cases] defining due process as requiring 'an opportunity to be heard wherein an adverse litigant must receive a hearing befo re a neutral tribunal ' in a meaningful time ' and in a 'meaningful manner'." (Id. *2.) Bixler does not stand for the proposition that respondent asks this court to b lieve. To be eligible for ERAP funds an appl icant must be "a tenant or occupant obligated to pay rent (emphasis added).' (L 2021, c 56, part BB, su bpart A,§ 5 [l] [a] [i].) Definitions in 3 of 5 INDEX FILED: NEW YORK CIVIL COURT - L&T 08/15/2022 09:49 AMNO. NYSCEF DOC. NO. 42 LT-059953-19/NY [HO] RECEIVED NYSCEF: 08/15/2022 the original E RAP statute, relevant here, remained unchanged when the statute was amend d by L 2021, ch 417. "Occupant" has the same meaning as under Real Property Law (RPL) Section 235 -f. (L 2021 c 56 part BB ubpart A, § 2 [7].) RPL 235-f defines "occupant" as "a person, other than a tenant or a memb r of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants." "Rent" is as defined under Real Property Actions and Proceedings Law (RPAPL) Section 702. (2021, c 56, part BB, subpart A,§ 2 [9].) RPAPL 702 defines "rent" 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." Respond ent's argument that, simply because the statute applies to both holdo ver and nonpayment proceedings the stay must remain in effect, disregards the fact that respondent is neither a tenant nor an occupant as defined by the statute. Respondent is not possession with the permission of the tenant; rather, re pondent is at ri k of ev ic tion because the property has been foreclosed upon. Regard less, respondent is an individual without permission from the tenant to reside in the premises and who has no obligation to pay rent. The plain language of the eligibility factors, which are not ambiguous as respondent posits, renders respondent ineligible for the stay. The court respectfully diverges from opinions of concurrent jurisdiction which hold otherwise. That respond ent is not eligible for the protections of the automatic stay under the plain language of the statute does not po11end that respondent will not be approved; the court cannot pretend to fully understand the mysterious review process employed by OTDA once an application is accepted for fil ing. However, as the court has the ability to parse respondent's eligibil ity for the stay and an agency is not estopped by an nor, B & H Check Cashing Serv. ofBrooklyn, Inc. v. Superintendent of Banks o..fState of NY, 261 AD2d 249 ( 1999), and is certainly not estopped by an enor that may occur at some future time, the court sees no reason to continue the stay. If respondent is ultimately approved, petitioner could decide that it will , after all, accept the approved moni s. But petitioner is under no obligati on under the law the fac ts, the circumstances, and procedural posture of this case to do so . If petitioner accepts any ERAP funding , petitioner wou ld be precluded from evicting respondent for 12 months since the date of 4 of 5 INDEX FILED: NEW YORK CIVIL COURT - L&T 08/15/2022 09:49 AMNO. NYSCEF DOC. NO. 42 LT-059953-19/NY [HO] RECEIVED NYSCEF: 08/15/2022 first acceptance but that is the only consequence petitioner wo uld face unless petitioner decides to create a landlord-tenant relationship with respondent, which is not present here. 1 CONCLUSION Accordingly , it is ORDERED that petitioner ' s motion is ORA TED and the automatic stay occasioned by the filing of respondent ' s ERAP application is vacated. The parties are to appear in Part F, Room 523 of the New York City Civil Courthouse on ovember 3, 2022 , at 2:30 p.m. for a traverse hearing which, under the circumstances if a FINAL date for traverse. If for any reason the respondent is not prepared to go forward, the court will conduct another pre-trial conference and transfer the proceeding to a trial part for trial. This constitutes the decision and order of this court. Dated: August 15 , 2022 New York, Y So ® ~ . Hon. Karen Ma~ BaQQa~an HO . KAREN MAY BACDA YAN Judge, Housing Part L 2021, c 56, part BB, su bp art A, § 9 (2) (d) states : "Acceptance of payment for rent or rental arrears from this program shal l constitute ag reem ent by the rec ipient landlord or property owner : (i) th at the arrears covered by this payment are satisfied and wil l not be used as the basis for a non-payment eviction; (ii) to waive any late fees due on any ren tal arrears pa id pursuant to this program; (iii ) to not increase the month ly rent due for the dwelling unit such that it shal l not be grea t er than the amount that wa s due at the time of app lication to the program for any and al l months for wh ich renta l ass istance is received and for one year after the first rental ass istance payment is received; (iv) not to evict for reason of expired lease or holdover tenancy any household on behalf of whom rental assistan ce is received for 12 months after the fir st rental assistance payment is received. " 1 5 of 5

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