OSC Re: Contempt (CCP 1209) in Bard Avenue Realty Llc v. Hava Arifi, John Doe, Jane Doe| Trellis.Law

On June 25, 2019 a Party Statement 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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NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 08/24/2021

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,
AFFIRMATION
-against- IN SUPPORT

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

Emilio Paesano, an attorney duly admitted to practice law before the Courts of the State of

New York, affirms under the penalties of perjury:

1. I am a Supervising Attorney with Mobilization for Justice Inc., which represents

Respondent HAVA ARIFI ("Respondent"). As such, I am familiar with the facts and

circumstances of this case. All statements made upon information and belief are based upon

conversations with my client and/or an examination of the court file,unless otherwise indicated.

2. I make this Affirmation in support of Respondent's Order to Show Cause which seeks an

Order from the Court:

i. Staying execution of the warrant of eviction against Respondent ARIFI through

October 3 2021, pursuant to Section 361 of the Public Health Service Act and the

Order issued by U.S. Centers for Disease & Control on August 3 2021 titled

"Temporary Halt in Residential Evictions in Communities With Substantial or High

Transmission of COVID-19 to Prevent the Further Spread of COVID-19"; and / or,

ii. Staying execution of the warrant pursuant to CPLR § 2201 and RPAPL § 749(3),

because Respondent here demonstrates good cause for said relief and this is her

firstrequest in this proceeding; and / or,

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iii. Staying execution of the warrant for a reasonable period of time to allow

Respondent ARIFI to vacate with dignity, pursuant to RPAPL § 753(1), because

Respondent here demonstrates extreme hardship; and,

iv. Granting Respondent ARIFI such further reliefas the Court deems just and proper.

3. Ultimately, for the reasons set forth herein, in the Affumation submitted by Sean Davis,

Esq., in Respondent's Affidavit, or in the annexed Memorandum of Law, the Court should grant

Respondent'sorder to Show Cause to the extent of staying execution of the warrant.

Facts

4. Respondent moved into Apt. 30-B, at 142 Bard Avenue, Staten Island, in 2014, and

Respondent has lived there continuously since then. h Affidavit of Respondent, annexed hereto.

5. Respondent moved into Apt. 30-B with Leland Rogan's permission, rendering her a

licensee. See id. In fact, Mr. Rogan offered to attempt to add Respondent to the lease for the

subject premises as a household member, but Respondent declined. See id.

6. Respondent has occupied and resided in Apt. 30-B as her home since 2014. For example,

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

of Petitioner for repairs to bedone, and Respondent keeps the apartment clean and tidy. Seeid.

7. Respondent is a person with disabilities and survives on SNAP and Supplemental Security

"1."
Income benefits. See id.;copy of most recent SSI Award Letter, annexed hereto as Exhibit

8. Respondent's household income has gone down substantially since the onset of the

COVID-19 pandemic, because Respondent lost her job as a direct result of the COVID-19

pandemic and wage-earning occupants of the household subsequently moved out. h Affidavit

of Respondent, annexed hereto.

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9. Despite this reality-lost income, the COVID-19 pandemic, and then the various eviction

moratoria-Respondent secured a CityFHEPS voucher and has been looking desperately for a new

apartment to move to as soon as possible. See id.;copy of CityFHEPS voucher, annexed hereto

"2."
as Exhibit

10. Just since retaining Mobilization For Justice Inc. for representation, Respondent has called

the following numbers for realtors, brokers, and management companies seeking a new apartment

to move to, based on listings Respondent researched herself: 718-442-5200 (Better Homes Realty),

718-420-2300 (Safari 718-
Realty), 917-771-8782, 917-776-6079, 718-238-5520, 646-733-7662,

718-987-7900 718-979-8000 (United 646-
727-1423, 718-373-2701, (Gateway Arms), Realty),

780-0136 (Robert 917-
DeFalco), 718-400-8216, 718-412-8333, 718-675-2232, 917-664-0300,

553-4545, and 973-443-5656. See Affidavit of Respondent, annexed hereto.

11. 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.

12. However, Respondent has had great difficulty finding another space to live in. For

example, Respondent has been the victim of source of income discrimination by landlords and

owners who have explicitly refused to accept Respondent's CityFHEPS voucher. h Affidavit of

Respondent, annexed hereto; Davis Affirmation, annexed hereto.

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

York City Commission on Human Rights. S_ee Affidavit of Respondent, annexed hereto; Davis

Affirmation, annexed hereto. Respondent is hopeful 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. S_ee Affidavit of Respondent, annexed hereto.

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14. To quote Respondent, "I did not contemplate that I would be discriminated against, or

understand the realities of the COVID-19 pandemic, when I agreed to move out and my former

2020."
attorney and I signed the settlement on January 17 I_st.

15. As Respondent ARIFI's current counsel, on July 22 2021, I spoke to counsel for Petitioner

and offered to assist Petitioner seek recovery for the entire balance of the alleged use and

occupancy that has come due for the subject premises since June 30 2020, by submitting an

application through the Emergency Rental Assistance Program ("ERAP") in exchange for

Respondent ARIFI retaining some kind of continued possession.

16. It isthe firm belief of the undersigned counsel for Respondent that a settlement could be

structured that would qualify Respondent-and Petitioner-for ERAP benefits, based on

Respondent's prima facie eligibility for ERAP and my own past experiences securing emergency

arrears assistance from the City and State Welfare Agencies in exchange for continued possession.

17. However, on the following day, Petitioner's counsel rejected my offer. See copy of Email

"3."
Exchange, annexed hereto as Exhibit

18. If Respondent 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.

Procedural History

19. Petitioner notified Respondents of its intention to recover possession of the subject

Lease,"
apartment using a "Notice Terminating Tenancy, Occupancy, dated January 23, 2019,

which set forth no cause or fault on the part of Respondents as a basis for termination, and set the

termination date as March 31, 2019. S_ee Predicate Notice, NYSCEF Doc. No. 41 (page 9).

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20. Petitioner then commenced the instant proceeding on June 25, 2019, or June 28, 2019, s_ge

92 Bergenbrooklyn. LLC v. Cisarano, 50 Misc.3d 21, 21 N.Y.S.3d 810 (App. Term 2d Dep't

2015), by serving a Petition dated June 18, 2019, along with a Notice of Petition. See Notice of

Petition & Petition, NYSCEF Doc. No. 41 (pages 7-8, 16, 18, 20).

21. In any event, Petitioner commenced this proceeding after passage of the Housing Stability

and Tenant Protection Act of 2019. Seg L 2019, ch 36, § 1, part M, §29 [June 2019].

22. Upon information and belief, Respondent retained CAMBA Legal Services for

representation and filed an Answer with the assistance of counsel on August 2, 2019. S_e_e

NYSCEF Doc. No. 1; NYSCEF Doc. No. 41 (pages 100-2).

23. On August 5, 2019, the Court found that Respondent "is not able to effectively defend...

interests,"
her rights and protect... her and appointed Jeffrey Saltiel as her guardian ad litem in

thisproceeding. S_ge Order Appointing GAL, NYSCEF Doc. No. 41 (pages 3-4).

24. Upon information and belief, Respondent filed an Amended Answer with the assistance of

counsel on October 25, 2019. See NYSCEF Doc. No. 1; NYSCEF Doc. No. 41 (pages 104-9).

25. The parties engaged in some motion practice once Petitioner moved to strike Respondent's

defenses, and the matter was adjourned. S_e_eNYSCEF Doc. No. 1.

26. Then, on January 17, 2020, the parties entered into a stipulation of settlement containing

the following terms:

i. Respondent ROGEN surrendered possession of the subject premises and the

proceeding was dismissed as against him;

ii. Respondent affirmed that she was then in possession of the subject premises with

Jonathan Flanagan and her brother, Ferhat Arifi, and Petitioner "reserve[d] itsrights

for inquest against such individuals and John Doe & Jane Doe";

iii. Respondent consented to the entry of a final judgment against herself, issuance of

the warrant forthwith, execution staying to June 30, 2020, for Respondent to vacate

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and surrender possession, and that Petitioner may execute the warrant upon default

following service of a marshal's notice;
Arifi."
iv. "Petitioner waives U & O claims against Resp. Hava

See Stipulation of Settlement, NYSCEF Doc. No. 41 (pages 1-2).

27. The judgment was entered against Respondent that same day pursuant to the terms of the

"5,"
stipulation, sge Judgment, NYSCEF Doc. No. 41 (page 99), annexed hereto as Exhibit but the

clerk did not issue the warrant. See id.;NYSCEF Doc. No. 1.

28. The COVID-19 pandemic halted all but essential functions within the New York City

Housing Court system by mid-March 2020.

29. On September 24, 2020, s_ee NYSCEF Doc. No. 1, Petitioner moved pursuant to DRP 213

for issuance of the warrant as against Respondent, leave to execute the warrant against Respondent,

and restoration of the instant proceeding for an inquest against John Doe and Jane Doe. S_e_e

NYSCEF Doc. No. 41 (pages 21-2).

30. Respondent discharged CAMBA Legal Services on November 6, 2020, and Petitioner's

motion was then granted by the Court on November 17, 2020, to the following extent: 'The warrant

shall issue and execute forthwith by service of marshal's notice as against Hava Arifi and Inquest

Doe."
shall be held on December 3, 2020 at 9:30 a.m. as against John and Jane NYSCEF Doc.

No. 41 (pages 21-2).

31. The inquest was held on December 3, 2020, and then on December 8, 2020, the Honorable

Judge Remy Smith issued the following ruling: "The Court finds that Petitioner established entitled

to judgment of possession but does not enter same while DRP-205, prohibiting entry of default

judgment, is ineffect. After such time, Petitioner is invited to submit an Order on notice for Entry

Respondents'
of Judgment with an accompanying Affidavit from one with knowledge as the

status."
military NYSCEF Doc. No. 41 (pages 5-6).

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32. On December 28, 2020, Governor Cuomo signed into law the "COVID-19 Emergency

2020,"
Eviction and Foreclosure Prevention Act of (L 2020, Ch. 381) ("the Act").

33. Earlier that day, Petitioner attempted to challenge the Decision / Order issued by Judge

Smith on December s_ee NYSCEF Doc. No. 9 - which motion the Court
8, 2020, 17-1, initially

calendared for Janüãry 12, 2021, se_e NYSCEF Doc. No. 17, but then appears to have denied

without prejudice based on passage of the Act.

34. Petitioner filed its first attempt to deprive Respondent of the protections of the Act on

January 14, 2021, s_ge NYSCEF Doc. 18-24, but Judge Smith declined to sign this Order to Show

Cause. S_eeeNYSCEF Doc. No. 25.

35. Respondent submitted a hardship declaration to the Court, which Respondent signed on

"A,"
February 11, 2021, and wherein Respondent selected option indicating that she was then

"experiencing financial hardship". NYSCEF Doc. No. 41 (pages 125-6).

36. On March 2, 2021, Petitioner filed a second Order to Show Cause seeking to deprive

Respondent of the protections of the s_ee NYSCEF Doc. No. 27 - other branches
Act, 40, among

of relief,and this Order to Show Cause was signed by the Court, see NYSCEF Doc. No. 39, and

then subsequently adjourned.

37. Respondent retained Mobilization for Justice Inc. for representation on May 31, 2021.

38. On July 21, 2021, over Respondent ARIFI's objection, Judge Smith issued a Decision /

Order which: (i)lifted the stay mandated by the Act; (ii)granted to Petitioner a final judgment of

possession as against Respondents JOHN DOE and JANE DOE, issuance of the warrants

forthwith, and execution forthwith; and (iii)granted to Petitioner issuance of a warrant against

Respondent HAVA ARIFI forthwith, execution forthwith. S_e_eNYSCEF Doc. No. 63.

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39. Comprehensive warrants were requisitioned by City Marshal Henry Daley the following

day, on July 22 2021, se_e NYSCEF Doc. No. 65-66, the judgments against Respondents JOHN

DOE and JANE DOE issued on July 23 2021, s_ee NYSCEF Doc. No. 69, and then upon

information and belief the warrants against Respondents ARIFI, JOHN DOE, and JANE DOE

issued shortly thereafter.

40. On August 3 2021, the U.S. Centers for Disease & Control ("CDC") issued an Order

extending the federal eviction moratorium, titled "Temporary Halt in Residential Evictions in

Communities With Substantial or High Transmission of COVID-19 to Prevent the Further Spread

COVID-19," "4,"
of se_e copy of Order, annexed hereto as Exhibit which was then recorded in the

43,244.1
Federal Register on August 6 2021. S_e_e86 Fed. Reg.

41. This Order limited the protections granted therein to "any tenant, lessee, or resident of a

residential property who provides to their landlord, the owner of the residential property, or other

person with a legal right to pursue eviction or a possessory action, a declaration under penalty of

indicating"
perjury inter alia that "individual resides in a U.S. county experiencing substantial or

CDC."
high rates of community transmission levels of SARS-CoV-2 as defined by If

Tracker"
42. The CDC created a section of its "COVID Data webpage titled "COVID-19

View,"
Integrated County which is updated daily at 8pm, and-as of August 24 2021-this

currently2
website reflects the determination by the CDC that Richmond County is experiencing

"high rates of commuñity transmission levels of SARS-CoV-2". See printout of CDC Website

"5."
(lastvisited 8-24-21), annexed hereto as Exhibit

1 See https://www.federalregister.gov/documents/2021/08/06/2021-16945/temporary-halt-in-residential-evictions-in-
communities-with-substantial-or-high-transmission-of
2 S_e_e Finds an
eg._ Kimiko de Freytas-Tamura, A Hospital Unlikely Group Opposing Vaccination:itsWorkers,
N.Y. TIMES (Aug. 22, 2021), https://www.nytimes.com/2021/08/22/nyregion/staten-island-covid-vaccine-
mandate.html

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43. On August 13 2021, upon information and belief, Marshal Daley resorted to conspicuous

placement in the course of allegedly attempting to serve a Notice of Eviction upon Respondent,

which Notice sets August 30 2021 as the first date upon which the eviction could be scheduled.

"6."
Seg copy of Notice of Eviction, annexed hereto as Exhibit

44. On August 18 2021, Respondent ARIFI signed the Eviction Protection Declaration

promulgated by the CDC following issuance of the August 3 2021 Order, s_e_e copy of Arifi

"7,"
Declaration, NYSCEF Doc. No. 71, annexed hereto as Exhibit and then through her

undersigned counsel served the Declaration upon Petitioner itself, Petitioner's counsel,

Respondent's guardian ad litem, and the remaining parties between August 19 and 20 2021, s_e_e

"8,"
Affirmation of Service re Declaration, NYSCEF Doc. No. 72, annexed hereto as Exhibit and

on August 20 2021, filed a copy of the Declaration with the Court.

45. Specifically, on August 20 2021, Respondent's undersigned counsel served Respondent's

Declaration upon Petitioner BARD AVENUE REALTY LLC, c/o Shoshy Feldman, using P.O.

Box 190307, Brooklyn, New York, 11219, sge ist,because Petitioner has caused this address to

be listed as its address on the Multiple Dwelling Registration statement filed for the subject

premises with the New York City Department of Housing Preservation and Development. S_e_g

DHPD website (last visited 8-24-21).

46. Later in the day on August 20 2021, an employee working for Marshal Daley conveyed

over the phone to the undersigned counsel for Respondent this employee's determination that

Respondent's CDC Declaration did not operate to stay execution of the warrant-based on a legal

conclusion that numerous Courts in the United States have rejected and despite the onerous

penalties for non-compliance set forth in the August 3 Order-and that as a result Marshal Daley

intended to proceed with the eviction unless the Court issued an Order to Show Cause.

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47. On August 23 2021, Respondent filed a Notice of Appeal regarding the Decision/Order

issued on July 21 2021 and the Judgment entered on July 23 2021. See NYSCEF Doc. No. 73-5.

Arguments & Conclusions

48. The Court should stay execution of the warrant against Respondent ARIFI through October

3 2021, pursuant to Section 361 of the Public Health Service Act and the eviction moratorium

issued by U.S. Centers for Disease & Control on August 3 2021, because Respondent has satisfied

Person"
the definition of "Covered set forth in the CDC Order and the resulting moratorium should

be interpreted to apply to the instant proceeding.

49. Alternatively, or in conjunction, the Court should stay execution of the warrant pursuant to

CPLR § 2201 and RPAPL § 749(3), because the facts set forth herein, in the Davis Affinnation,

and in Respondent's Affidavit constitute good cause for said relief.

50. Alternatively, or in conjunction, the Court should stay execution of the warrant for a

reasonable period of time to allow Respondent ARIFI to vacate with dignity, pursuant to RPAPL

§ 753(1), because Respondent herein has demonstrated extreme hardship.

51. The Court is respectfully directed to the annexed Memorandum of Law for

citations, case law, and analysis in support of these conclusions. See copies of Decisions

"9."
interpreting CDC Moratorium, annexed hereto as Exhibit

WHEREFORE, Respondent ARIFI prays that the relief sought herein be granted.

Dated: August , 2021 .

Brooklyn, New York Emilio Paesano, of counsel to

Tiffany A. Liston, Esq.
Mobilization for Justice, Inc.

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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:
142 Bard Avenue, Apt. 30-B
Respondents. Staten Island, NY 10310

AFFIRMATION IN SUPPORT

Mobilization for Justice, Inc.
Attorneys for Respondent HAVA AR1FI
424 East 147th Street, 3rd Floor

Bronx, NY 10455

417 - 3818
(212)
epaesano@mfilegal.org

Emilio Paesano, an attorneyduly adrnittedto the Courts of theState ofNew York, hereby certifiesthatthe annexed
papers are tothebest ofmy knowledge and upon information and belief,formed afteran inquiry reasonable under the
circurn£ences, thatthe presentationof saidpapers or contentionstherein arenot frivolousas defined insubsection (c)
of section130-1.1 of 22 NYCRR.

Dated: August , 2021
Brooklyn, New York

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Case Info

Case No.

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Document Filed Date

August 24, 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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Party Statement: Bard Avenue Realty Llc v. Hava Arifi, John Doe, Jane Doe

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