Tenants Must Pay U & O While Case Pending Outside Pending ERAP Applications

Tenants sued landlord in February 2020, claiming that they were rent stabilized, after landlord served them with 90-day lease nonrenewal notices in November 2019 and then commenced eviction proceedings in Housing Court. Landlord claimed that tenants were unregulated. At some point, landlord asked the court to direct tenants to pay use and occupancy (u&o) while their case against landlord was pending. Tenants pointed out that they had filed ERAP applications, seeking rental assistance from NY State. They argued that they shouldn't have to pay anything while their emergency rental assistance applications were pending. Landlord argued that, since the tenancies had been terminated, tenants weren't eligible to obtain ERAP assistance.

The court ruled for landlord in part. Since tenants occupied their separate apartments, landlord would have the right to past and prospective u&o in an amount consistent with rent charged under their leases. It didn't matter that there were presently pending holdover proceedings, even though those cases were currently stayed under NY eviction moratorium and ERAP legislation responding to the COVID-19 pandemic. The court noted that, since the underlying dispute here concerned whether landlord's refusal to renew tenants' leases was legally permissible under rent stabilization, it wouldn't reach the issue of whether tenants were ineligible for ERAP funds because their leases had expired. But tenants hadn't paid any use and occupancy since March 2020 and ERAP wouldn't cover more than 15 months of rent. So, for now, tenants must pay u&o except for the 15-month period between March 2020 and May 2021. After tenants' ERAP applications were decided, the court would further consider whether tenants should pay u&o for that period.

Isidoro v. Team Props. LLC: Index No. 450688/2020, 2021 NY Slip Op 32626(U)(Sup. Ct. NY; 12/8/21; Chan, J)