Motion-Secondary: Bard Avenue Realty Llc v. Hava Arifi, John Doe, Jane Doe

On June 25, 2019 a Motion-Secondary was filed involving a dispute between Bard Avenue Realty Llc, and Hava Arifi, Jane Doe, John Doe, for Landlord and Tenant - Holdover in the District Court of Richmond County.

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CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND: HOUSING, PART Y
X
BARD AVENUE REALTY LLC,
Index No. L&T 51697/19

Petitioner,

-against-

LELAND ROGAN, HAVA ARIFI,
"JOHN" "DOE" "JANE"
& "DOE", Subject Premises:
142 Bard Avenue, Apt. 30-B
Respondents. Staten Island, NY 10310
X

MEMORANDUM OF LAW

Emilio Paesano, of Counsel to

Tiffany A. Liston, Esq.
Mobilization for Justice, Inc.
Attorneys for Respondent ARIFI
424 East 147th Street, 3rd Floor

Bronx, New York 10455

417 - 3800
(212)
enaesanoamfilegal.ore

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PRELIMINARY STATEMENT

The Court should stay execution of the warrant of eviction to allow Respondent ARIFI to

vacate the subject premises with dignity, because Respondent through counsel has located a

possible apartment to move to which is subject to the Rent Stabilization Laws, in a building owned

by a landlord that will accept her CityFHEPS voucher, and / or because Respondent has submitted

an ERAP application in an effort to compensate Petitioner for any use and occupancy that has

come due for the subject premises since July 1 2020.

RELEVANT FACTS

Respondent respectfully directs the Court to the facts and procedural history set forth in

the annexed Affinnations and the Affidavit of Respondent annexed hereto. See supra.

ARGUMENT

L CPLR § 2201 & RPAPL § 749(3)

Pursuant to CPLR § 2201, "the court in which an action is pending may grant a stay of

just."
proceeding in a proper case, upon such terms as may be See also 203 East 13th St. Corps

Lechycky, 67 Misc.2d 451, 324 N.Y.S.2d 560 (App. Term 1st Dep't 1971) ("A summary

proceeding remains pending until the execution of the warrant. ... While the proceeding is

pending, the warrant may be stayed under CPLR 2201.").

Moreover, RPAPL § 749(3) authorizes the Court to vacate or stay the warrant issued in a

sununary eviction proceeding for good cause. See e.g., Lafayette Bovnton Hous. Coro. v. Pickett,

135 A.D.3d 518, 23 N.Y.S.3d 204 (App. Div. 1st Dep't 2016); Harvev 1390 LLC v. Bodenheim,

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96 A.D.3d 948 N.Y.S.2d 32 (App. Div. 1st Dep't Halsev Homes Corn. v. Prince-
664, 2012);

Bowden, 69 Misc.3d 137(A), 132 N.Y.S.3d 514 (App. Term 2d Dep't 2020).

Demonstrable efforts at compliance and delays occasioned by events beyond the

respondent's control are facts tending to satisfy the requisite good cause for purposes of staying

execution of the warrant under RPAPL § 749(3). See g 2246 Holdine Coro. v. Nolasco, 52

A.D.3d 377, 860 N.Y.S.2d 516 (App. Div. 1st Dep't 2008); 117 W. 142. L.L.C. v. Villanueva, 51

Misc.3d 149(A), 41 N.Y.S.3d 450 (App. Term 1st Dep't 2016); 2203 Belmont Realty Corp. v.

G_ant, 51 Misc.3d 140(A), 36 N.Y.S.3d 410 (App. Term 1st Dep't 2016).

In any event, the Court retains supervisory authority over the enforcement of so-ordered

stipulations, and can relieve respondents in summary eviction proceedings from unjust results as

circumstances dictate. See g 135 Amersfort Assoc.. LLC v. Jones, 48 Misc.3d 142(A), 20

N.Y.S.3d 292 (App. Term 2d Dep't 2015); 361 W. 121st Hous. Dev. Fund Corn. v. Frazier, 26

Misc.3d 46, 894 N.Y.S.2d 315 (App. Term 1st Dep't 2009), quoting Bank of N.Y. v. Forlini, 220

A.D.2d 377, 378, 631 N.Y.S.2d 440 (App. Div. 2nd Dep't 1995).

Specifically, the Court has the discretion to "apply and/or interpret statutes to provide

equitable relief, in the interests of justice, to avoid forfeitures and homelessness where the unique

relief."
facts of a particular case warrants such Errigo v. Diomede., 14 Misc. 3d 988, 829 N.Y.S.2d

873 (Civ. Ct. Kings Cty. 2007) (Heymann, J). Thus, the Court maintains the ability to "fashion an

appropriate remedy to avoid the deleterious effects of eviction on a vulnerable segment of our

society..."
If The Court is therefore within itspurview to extend the time period for staying

execution of a warrant when doing so avoids homelessness.

Here, to quote directly from Respondent's Affidavit, "I did not contemplate that I would

be discriminated against, or understand the realities of the COVID-19 pandemic, when I agreed to

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2020."
move out and my former attorney and I signed the settlement on January 17 Affidavit of

Respondent, annexed hereto.

Specifically, just since retaining Mobilization For Justice Inc. for representation,

Respondent has called the following numbers for realtors, brokers, and management companies

a new apartment to move based on listings Respondent researched herself: 718-442-
seeking to,

5200 (Better Homes 718-420-2300 (Safari 718-
Realty), Realty), 917-771-8782, 917-776-6079,

718-987-7900 718-
238-5520, 646-733-7662, 718-727-1423, 718-373-2701, (Gateway Arms),

979-8000 (United 646-780-0136 (Robert 718-
Realty), DeFalco), 718-400-8216, 718-412-8333,

675-2232, 917-664-0300, 917-553-4545, and 973-443-5656. See id.

Upon information and belief, Respondent has called several new phone numbers for

realtors, brokers, and management companies since Respondent signed her annexed Affidavit on

August 18 2021, again seeking a new apartment to move to without delay.

However, Respondent has had enormous difficulty finding another space to live in, because

Respondent has been the victim of source of income discrimination by landlords and owners who

have explicitly refused to accept Respondent's CityFHEPS voucher. S_e_eAffidavit of Respondent,

"3."
annexed hereto; Letter from NYCCHR, annexed as Exhibit

Respondent is currently filing a claim based precisely on thisdiscrimination with the New

York City Commission on Human Rights. Sg Affidavit of Respondent, annexed hereto; Letter

"3."
from NYCCHR, annexed as Exhibit Respondent ishopeful that pursuing the claim will result

in Respondent getting offered an apartment to move to owned by a landlord that will accept

Respondent's CityFHEPS voucher. See Affidavit of Respondent, annexed hereto; Letter from

"3."
NYCCHR, annexed as Exhibit

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Moreover, today (August 27 2021), the undersigned counsel for Respondent spoke to an

agent of YMY Management, a/k/a YMY Acquisitions LLC, in an effort to locate an apartment for

Respondent to move to that will allow her to use her CityFHEPS voucher, and was informed by

this agent that an owner of a building located on Hennessy Place in the Bronx was interested in

renting an apartment subject to the Rent Stabilization Laws to Respondent and in working with

Respondent through the CityFHEPS program, and was particularly interested in the potential

$4,300.00 lease-signing bonus written into Respondent's CityFHEPS voucher. h copy of

"2."
CityFHEPS voucher, annexed hereto as Exhibit This agent asked that I explore with the New

York City Human Resources Administration ("HRA") when in fact the CityFHEPS voucher

payment standards will be increased to the Section 8 voucher payment standards-which eviction

defense practitioners understand to be happening imminently-and agreed to speak again about

the possible apartment for Respondent to move to without delay on Monday August 30 2021.

I have since asked HRA for this information, and learned that on September 1 2021 the

CityFHEPS limits increase to amounts that will allow Respondent to use her CityFHEPS voucher

for the apartment that was offered to her on Hennessy Place. My source for this information is

Sara Zuiderveen, Deputy Commissioner in the Homelessness Prevention Administration unit at

HRA. I then immediately notified the agent of YMY Management I spoke to earlier today and

requested that a lease for the apartment on Hennessy Place be offered to Respondent on Monday

morning, or as soon as possible.

Also today Respondent submitted an application through the Emergency Rental Assistance

Program ("ERAP") for a grant to be paid to Petitioner that, upon approval, would compensate

Petitioner for all alleged use and occupancy that has come due for the subject premises from July

1 2021 through to the present, using $1,075.00 as the monthly use and occupancy given that this

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was the amount of rent set forth in Respondent ROGAN's last lease for the subject premises. S_ee

"4."
ERAP Confirmation Email, annexed hereto as Exhibit

IfRespondent was evicted, Respondent would certainly become homeless and would sleep

outside, or at the Staten Island Ferry terminal. See Affidavit of Respondent, annexed hereto.

Respondent has been forced to sleep in a shelter before, multiple times. h id.

Therefore, the Court stay execution of the warrant against Respondent ARIFI for a

reasonable period of time so that she may vacate with dignity.

H. RPAPL § 753(1)

In 2019, the New York Legislature enacted the Housing Stability and Tenant Protection

Act ("HSTPA"), which amended numerous provisions of New York law, including the Real

Property Actions and Proceedings Law ("RPAPL"). S_ee Senate Bill 6458. For example, Part M

of the HSTPA amended RPAPL section 753 by, inter alia, extending the time a court may stay the

execution of a warrant and providing a listof factors the court must consider in determining

hardship"
"extreme for a respondent who seeks to stay the execution of a warrant. See RPAPL §

753(1). Drafters of the HSTPA specified that expanding the time period a Court may stay

execution of a warrant-from six months from issuance of the warrant, to one year from

issuance-served to "allow more leniency throughout any eviction proceeding ... and ensure that

any eviction that is executed is done so in the interest of
justice."
h Legis. Mem. In Support of

NY State Senate Bill,2019 Sess. Law News of NY Ch. 36 (S. 6458) [McKinney's].

Indeed, New York City Civil Court judges presiding over residential summary eviction

proceedings have acknowledged and applied the amended version of RPAPL § 753(1), and have

even applied itretroactively in cases that were initiated prior to the passage of the HSTPA. S_ee

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mg.. E&V Acquisition v. Margaret H., 65 Misc. 3d 944, 110 N.Y.S.3d 801 (Civ. Ct. N.Y. Cty.

2019) (finding that RPAPL § 753(1) as amended by the HSTPA warranted a stay in a case that

had been commenced in 2015); N.Y.C. Housine Authority v. Jones Jr.,2019 N.Y.L.J. LEXIS 3649

(Civ. Ct. N.Y. Cty.) (Elsner, JHC) (finding that poor health and disabilities constituted the type of

extreme hardship the legislature sought to alleviate when itamended RPAPL § 753(1)).

As noted above, the HSTPA amendments to Section 753 authorize the Court to stay

execution of a warrant for one year from issuance of the warrant. S_ee RPAPL § 753(1). In order

to stay execution of a warrant, the premises must be used as a dwelling and the application must

have been made in good faith. See id. The applicant must then demonstrate that she either cannot

secure suitable premises in the same neighborhood or that "by reason of other facts it would

granted."
occasion extreme hardship to the applicant or the applicant's family ifthe stay were not

& The legislature specifically provided that the court shall consider "serious illhealth, significant

exacerbation of an ongoing condition... and any other extenuating life circumstances affecting the

life,"
ability of the application or the applicant's family to relocate and maintain quality of when

determining whether refusing a stay would occasion extreme hardship. IA

In addition to the provisions of RPAPL § 753(1), the Court will only stay execution of a

warrant "upon the condition that the person against whom the judgment is entered shall make a

deposit in court of the entire amount, or such installments thereof from time to time as the court

stay..."
may direct, for the occupation of the premises for the period of the S_ee RPAPL § 753(2)

(emphasis added). While this provision does allow a court to require a tenant to pay for her use

and occupancy of an apartment upon issuance of a stay, it also allows the court to exercise

discretion. See eg. 140 West End Avenue Owners Coro. v. Dinah L., 66 Misc.3d 555, 114

N.Y.S.3d 844 (Civ. Ct. N.Y. Cty. 2019) (declining to condition a stay upon the payment of use

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and occupancy because RPAPL § 753(2) "clearly gives the Court discretion..."). The Appellate

Firstl
Division, Department, has held that itis proper and within the Court's discretion to consider

an apartment dweller's financial circumstances when determining an appropriate use and

occupancy order. See Tessler v. Tessler, 81 A.D.3d 408, 916 N.Y.S.2d 767 (App. Div. 1st Dep't

2011). Moreover, the Court should find instructive Section 745 of the RPAPL, which limits an

award of interim use and occupancy when the respondent receives Supplemental Security Income

to 30% of the respondent's monthly disbursement(s). S_eee RPAPL § 745(2)(c)(i); Cathedral

Parkway Towers. LLC v. Soto, 65 Misc.3d 159(A), 119 N.Y.S.3d 803 (App. Term 1st Dep't 2019).

Finally, the Court should also find instructive Section 753(5) of the RPAPL, which

provides that "[a]ny provision of a lease or other agreement whereby a lessee or tenant waives any

void."
provision ofthis section [§ 753] shall be deemed against public policy and RPAPL § 753(5).

Here, the Court should find that Respondent "cannot within the neighborhood secure

occupied"
suitable premises similar to those currently by Respondent, that she has "made due and

premises,"
reasonable efforts to secure such other and that "itwould occasion extreme hardship to

granted,"
[Respondent]... ifthe stay were not RPAPL § 753(1), for the following reasons.

First, the subject premises has been Respondent's home since 2014. For example,

Respondent has received mail there for several years, Respondent has provided access to agents

of Petitioner for repairs to be done, and Respondent keeps the apartment clean and tidy. S_ee

Affidavit of Respondent, annexed hereto. Moreover, the warrant against Respondent only issued

sometime after July 23 2021. S_ee RPAPL § 753(1); NYSCEF Doc. No. 65-66, 69.

1 An appellateruleenunciated in the First
Department thatis squarely
on point binds a Courtin theSecond Department
in the absence of a contrary appellaterule declared in the Second Depamucm, or by the Court of Appeals. S_ee
Mountain View Coach LinesInc.v.Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (App. Div. 2d Dep't 1984). See also
Nachbaur v. Arn.Transit Ins.Co., 300 A.D.2d 74, 752 N.Y.S.2d 605 (App. Div. 1st Dep't 2002), ly.dismissed 99
N.Y.2d 576, 755 N.Y.S.2d 709 (2003), cert.denied 538 U.S. 987, 123 S. Ct.1801 (2003).

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Second, Respondent is a person with disabilities and survives on SNAP and Supplemental

Security Income benefits. See 11; copy of most recent SSI Award Letter, annexed hereto as

"1."
Exhibit Nevertheless, Respondent has applied for ERAP benefits in an effort to make

"4."
Petitioner whole. See ERAP Confirmation Email, annexed hereto as Exhibit Upon

information and belief, Respondent has been found eligible for protective services by the New

York City Human Resources Administration, Adult Protective Services, multiple times in the past,

and the Court has determined that Respondent "is not able to effectively defend... her rights and

interests,"
protect... her in this proceeding. See Order Appointing GAL, NYSCEF Doc. No. 41

(pages 3-4). To be clear, ifRespondent was evicted, Respondent would certainly become homeless

and would sleep outside, or at the Staten Island Ferry terminal. See Affidavit of Respondent,

annexed hereto. Respondent has been forced to sleep in a shelter before, multiple times. See id.

Third, as noted above, I have found a possible apartment for Respondent to move to, that

issubject to the Rent Stabilization Laws, at a monthly rent that HRA will accommodate, and owned

by a landlord that will accept her CityFHEPS voucher. Respondent simply needs an opportunity

for this CityFHEPS transfer process to take place, which I will do everything in my power to

expedite.

Fourth, again as noted above, Respondent has had enormous difficulty finding another

space to live in, because Respondent has been the victim of source of income discrimination by

landlords and owners who have explicitly refused to accept Respondent's CityFHEPS voucher.

"3."
See Affidavit of Respondent, annexed hereto; Letter from NYCCHR, annexed as Exhibit

Compare NYCHA - Gowanus Houses v. 2016 N.Y.L.J. LEXIS 3663 (Civ. Ct. Kings
Encarnacion,

Cty. 2016). Respondent is currently filing a claim based precisely on thisdiscrimination with the

New York City Commission on Human Rights. See Affidavit of Respondent, annexed hereto.

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Finally, the realities of the COVID-19 pandemic constitute precisely the "extenuating life

life,"
circumstances affecting the ability of the application... to relocate and maintain quality of

RPAPL § 753(1), based on the following findings by the CDC:

a) "Currently, the Delta variant is the predominant SARS-CoV-2 strain circulating
in the United States, estimated to account for over 82% of cases as of July 17,
2021."

b) "Transmission of the Delta variant has led to accelerated community
States."
transmission in the United

c) "[E]arly evidence suggests that people who are vaccinated and become infected
others."
with the Delta variant may transmit the virus to

d) "The COVID-19 vaccination effort has a slower rate of penetration among the
eviction."
populations most likely to experience

e) "In the context of a pandemic, eviction moratoria-like quarantine, isolation,
and social distancing-can be an effective public health measure utilized to
disease."
prevent the spread of communicable

See 86 Fed. Reg. 43,244, at 43,246.

Moreover, upon information and belief, the CDC has determined that Richmond County is

SARS-CoV-2,"
currently experiencing "high rates of community transmission levels of and in fact

Richmond County currently "has the highest rate of Covid-19 infection of any borough in New

City."
York Kimiko de Freytas-Tamura, A Hospital Finds an Unlikely Group Opposing

Vaccination: Its Workers, N.Y. TIMES (Aug. 22, 2021),

https://www.nytimes.com/2021/08/22/nyregion/staten-island-covid-vaccine-mandate.html

Therefore, the Court should stay execution of the warrant of eviction for a reasonable

period of time, pursuant to RPAPL § 753, so that Respondent ARIFI may vacate with dignity.

HL ERAP

Pursuant to 2021 N.Y. Laws Ch. 56, Part BB, Subpart A, § 6(3), "[a]ny party, or their

application"
designee, that may be eligible to receive funds under this program may initiate an

through the Emergency Rental Arrears Program ("ERAP").

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"eligible"
An applicant includes "occupant obligated to pay rent in theirprimary residence

in the state of New
York,"
& at § 5(1)(a)(i), where
"rent"
is defined pursuant to Section 702 of

the RPAPL, s_e_e4 at § 2(9), which encompasses "the monthly or weekly amount charged in

consideration for the use and occupation of a dwelling pursuant to a written or oral rental

agreement."
RPAPL § 702.

Even an unlawful occupant sued as a respondent in a summary eviction proceeding can be

obligated to pay use and occupancy to the petitioner, both before and after a judgment has been

entered against the occupant and a warrant has been issued, sge RPAPL §§ 745(2), 749(3); F_ir_st

Edition Composite. Inc. v. Seymour, 1/23/1991 N.Y.L.J. 24, col. 5 (Civ. Ct. N.Y. Cty.) (finding

squatter responsible for use and occupancy), and the amount of use and occupancy "may properly

lease"
be assessed as the rent reserved in an expired for the subject premises. Siodlak v. Light, 50

Misc.3d 141(A), 31 N.Y.S.3d 924 (App. Term 9th & 10th Jud. Dists. 2016). See ea. Walber 72nd

St. Assocs. v. Pardo, 8/24/1994 N.Y.L.J. 22, col. 5 (Civ. Ct. N.Y. Cty.).

Pursuant to 2021 N.Y. Laws Ch. 56, Part BB, Subpart A, § 8, "[e]viction proceedings for

a holdover or expired lease, or non-payment of rent or utilities that would be eligible for coverage

under this program shall not be commenced against a household who has applied for this program

unless or until a determination of ineligibility ismade. If such eviction proceedings are commenced

against a household who subsequently applies for benefits under this program, all proceedings

eligibility."
shall be stayed pending a determination of

Here, the Court should stay the instant proceeding at least for reasonable period of time so

that Respondent may vacate with dignity, for the following reasons.

First, the instant proceeding is an "eviction proceeding[] for a holdover or expired lease...".

L at § 8.

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eligible"
Second, Respondent "may be for ERAP benefits, 4, at § 6(3), based on the facts

"obligated,"
set forth in her annexed Affidavit and because Respondent may be 11, at § 5(1)(a)(i),

to pay to Petitioner use and occupancy that has come due since July 1 2020-potentially pursuant

to quantum meruit, or RPAPL § 753(2)-set at $1,075.00 per month, on the grounds that:

a) Petitioner named Respondent as a household member in the "Notice

Lease"
Terminating Tenancy, Occupancy, dated January 23, 2019 that itserved

as the premise for this proceeding, which set forth no cause or fault on the part

ofRespondents as a basis for termination, and set the termination date as March

31, 2019. See Predicate Notice, NYSCEF Doc. No. 41 (page 9).

b) Petitioner sought a judgment for rental arrears and use and occupancy in the

instant Petition, wherein Petitioner also named Respondent as a household

member. See Petition, NYSCEF Doc. No. 41 (pages 7-8).

c) Petitioner in the stipulation settling the instant proceeding waived the right to

collect use and occupancy from Respondent through June 30 2020, but the

stipulation is silent as to Respondent's legal obligation to pay use and

occupancy to Petitioner in the event of default. S_ee NYSCEF Doc. No. 30.

d) "The obligation to pay for use and occupancy does not arise from an underlying

contract between the landlord and the occupant[,] [but] [r]ather, an occupant's

duty to pay the landlord for itsuse and occupancy of the premises is predicated

upon the theory of quantum meruit, and is imposed by law for the purpose of

parties."
bringing about justice without reference to the intention of the

Eighteen Assoc. v. Nanjim Leasing Coro., 257 A.D.2d 559, 559-560, 683

N.Y.S.2d 291 (App. Div. 2d Dep't 1999) (emphasis in bold added).

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e) The lastlease between Petitioner and Respondent ROGAN, see NYSCEF Doc.

lease"
No. 58, establishes $1,075.00 as "the rent reserved in an expired for the

subject premises. Siodlak v. Light, 50 Mise.3d 141(A), 31 N.Y.S.3d 924 (App.

Term 9th & 10th Jud. Dists. 2016).

Third, although the Court has made findings as to the lawfulness of Respondent's

occupancy in the Orders issued on July 21 2021 and August 24 2021, Respondent is currently

appealing those findings. h NYSCEF Doc. No. 73-5, 91-3.

Fourth, Respondent has submitted her ERAP application to the Office of Temporary and

Disability Assistance, and secured a confirmation number, #QHOUY. h Affidavit of

"4."
Respondent, annexed hereto; ERAP Confirmation Email, annexed hereto as Exhibit

Therefore, the Court should stay all proceedings on the part of Petitioner, itsagents, its

eligibility,"
attorneys, and any Marshal in New York City "pending a determination of 2021 N.Y.

Laws Ch. 56, Part BB, Subpart A, § 8, or at least stay execution of the warrant of eviction for a

reasonable period of time so that Respondent may vacate with dignity.

CONCLUSION

Ultimately, for the reasons set forth herein, in the annexed Affinnation, and in Respondent

ARIFI's Affidavit, the Court should grant Respondent's Order to Show Cause to the extent of

staying execution of the warrant.

Dated: August , 2021
New York •
Brooklyn,
Emilio Paesano, Esq.

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Index No. L&T 51697 Year 2019

CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF RICHMOND: HOUSING, PART Y

BARD AVENUE REALTY LLC,

Petitioner,

-against-

LELAND ROGAN, HAVA ARIFI,
"JOHN" "DOE" "JANE"
& "DOE", Subject Premises:

Case Info

Case No.

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Document Filed Date

August 27, 2021

Case Filing Date

June 25, 2019

County

Parties

Bard Avenue Realty LLC Plaintiff
Bougopoulos, Gregory Attorney for the Plaintiff
Hava Arifi Defendant
Jane Doe Defendant
John Doe Defendant
PAESANO, EMILIO Attorney for the Defendant
Tiffany Liston Attorneys for Defendants
JEFFREY SALTIEL Attorney
SEAN DAVIS Attorney
JEFFREY SEIGEL Attorney
BRITTANY DANIELS Attorney
STEVEN HASTY Attorneys for Plaintiffs
RAMONA GOODMAN Attorneys for Defendants
MARC SCOLNICK Attorney
MARK WARD Attorneys for Defendants
ELIZABETH MILLER Attorneys for Defendants
ILENE SUSSMAN Attorney

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Motion-Secondary: Bard Avenue Realty Llc v. Hava Arifi, John Doe, Jane Doe

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