BBG News

Housing Court Judge Grants Owner’s Request To Lift ERAP Stay In Holdover Proceeding

Mar 24, 2022

With potentially far reaching implications, a Housing Court Judge ruled on March 22, 2022 that she had the authority to lift the stay automatically imposed when an application for COVID-19 Emergency Rent Assistance Program (“ERAP”)  benefits are filed with the New York State Office of Temporary and Disability Assistance (“OTDA”).  In particular, in a licensee holdover proceeding, the Civil Court of the City of New York, Bronx County (Hon. Diane E. Lutwak, J.H.C.), relied on the plain reading of the ERAP statute and vacated an ERAP stay.

In this case, the owner sought relief from the stay on essentially two grounds: (a) the ERAP stay is unconstitutional; (b) the “occupant” (who was a licensee and not a “tenant”) was ineligible for ERAP benefits.  The owner also reasoned that a stay would be futile because the occupant had no right to lawfully remain in the apartment. The Judge did not feel the need to reach the merits of the constitutional arguments of the ERAP statute.  However, the Judge did indicate that she has the authority to do so and even shed a light on some of the potential constitutional infirmities of the law.

The Court concluded that it had the authority to vacate an ERAP stay based upon the fact this was a licensee holdover case.  As a result of this decision, commencement or prosecution of a licensee holdover currently stayed pursuant to an ERAP application being filed, where the occupant has no colorable claim of tenancy rights, may be permitted to proceed. In light of the conclusion by the Court that Housing Court Judges have the authority to lift stays “either explicitly or implicitly” “when faced with appropriate facts and equitable considerations,” this decision may also provide a potential  road map for expanding the reasoning to apply to other types of cases.

If you have any questions about this decision and how it may apply to the commencement or prosecution of a licensee or other eviction proceeding, please contact your BBG attorney on record.

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