Court Vacates ERAP Stay Where Tenant Is Unregulated and Landlord Won't Accept ERAP Funds

Landlord sued to evict unregulated tenant in early 2022 based on termination of their tenancy. On Feb. 3, 2022, tenant's attorney advised landlord and the court that tenant had filed an ERAP application and asked that the proceeding be stayed until a final determination was made on the application by the State Office of Temporary and Disability Assistance (OTDA).

Landlord argued that, while tenant had been provisionally approved for ERAP, it didn't intend to accept any funds from ERAP and that therefore no delay was necessary. Landlord filed a motion to vacate the automatic ERAP stay. Landlord pointed out that the building was a two-family house not subject to any rent regulation.

The court noted that there had been a number of recent rulings on whether the automatic stay imposed by the filing of an ERAP application can be lifted by a court. Factors to be considered include the regulatory status of the premises, the nature of the cause of action, the relationship between the tenant and landlord, whether the applicant met the basic criteria for ERAP assistance, and whether the equities favored the landlord.

The court ruled for landlord. Landlord had demonstrated that payment of rent arrears wouldn't resolve the issue at hand, and the equities strongly favored landlord. Unlike CEEFPA, the ERAP statute isn't a measure designed to protect litigants where rent isn't the basis for seeking possession. And acceptance of payment of ERAP benefits prior to issue being joined would have the effect of vitiating the predicate notice and constitute grounds for dismissal because the ERAP law requires landlord, upon receipt of payment, to ratify the lease term or period of possession for an additional 12 months before landlord could start a holdover proceeding. Requiring landlord to wait 180 days under the circumstances of this case would be an unnecessary "exercise in futility" since landlord had no intention of accepting the payment or reinstating the terminated tenancy. [Download decision here.]

Papandrea-Zavaglia v. Arroyave: Index No. 303636/21 (Civ. Ct. Kings; 4/7/22; Scheckowitz, J)[6-pg. document]