X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

The following papers numbered 1 to 3 were read and considered on the Petitioner’s application for a hearing to determine the Respondent’s hardship Papers Numbered Notice of Motion and Affidavits Annexed           1 Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition    2 Summons and Complaint Replying Affidavits              3 Filed Papers Exhibits Memorandum of Law DECISION AND ORDER Petitioner R.J. Rose Realty LLC commenced this nonpayment proceeding to recover possession of the commercial premises and a money judgment for arrears in the sum of $36,351.93 with interest from April 1, with costs, disbursements and attorney’s fees. On or about June 2, 2021 Respondent filed a COVID-19 Hardship Declaration. PROCEDURAL HISTORY The petition was returnable on January 11, 2021 yet the matter was adjourned on several occasions pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (hereinafter “CEEFPA”) until October 13, 2021. Petitioner now moves for a hearing to determine whether Respondent meets the criteria under the New York State eviction moratorium to establish a hardship stay. ARGUMENTS Petitioner alleged that it has observed Respondent conducting “ongoing business operations at the subject premises”. Petitioner acknowledged that while Respondent may have suffered a loss of income, a stay of the matter is not warranted. Petitioner that Respondent’s unit is one of the largest and the stay has created an untenable position for Petitioner in the outstanding arrears total of $159, 308.72. Respondent, a costume supplier and maker, opposed the scheduling of a hardship hearing. Respondent argued that it has suffered a financial hardship as the pandemic shut down all theatre productions for a year. In support, Respondent annexed copies of its New York State Quarterly Sales and Use Tax Returns. The tax returns reflect gross sales as follows: 12/1/19-2/29/20 $65,448.00 3/1/20-5/31/20 $22,953.00 6/1/20-8/31/20 $915.00 12/1/20-2/28/21 $14,604.00 Respondent further averred that the most recent quarter (6/1/21-8/31/21) resulted in gross sales of $15,603.00, “[a] fraction of the pre-pandemic sales” according to Respondent. DISCUSSION Under CEEFPA as originally drafted, a tenant needed only to file a hardship declaration alleging that the tenant was suffering a financial hardship related to the COVID-19 pandemic. The filing resulted in an automatic stay of the proceedings. Although the hardship was a rebuttable presumption, landlords were unable to challenge same. The legislation was thereafter amended following the Supreme Court’s decision holding that the CEEFPA provision precluding landlords from contesting the hardship declaration violated the Due Process Clause. Chrysafis v. Marks 141 S.Ct. 2482 (2021). The amended legislation extends the eviction moratorium to January 15, 2022. Act, Subpart A, §5. Further, it provides petitioners an opportunity to challenge the hardship declaration by alleging a good faith belief that the respondent was not suffering a hardship. The Court must thereafter direct a hearing on the validity of the hardship upon a petitioner’s motion. Id. at §10(1). In the present matter Petitioner’s principal alleged: “Our offices are located in the same building as respondent’s, and we have observed ongoing business operations at the subject premises. The fact that she is continuing the business and we were advised that Respondent had obtained governmental assistance related to the pandemic, leads us to believe that while there may have been some loss of income, it does not warrant a continuing stay.” (Affidavit in Support dated September 29, 2021. Respondent submitted documents which Respondent alleged demonstrates a loss of income related to the COVID-19 pandemic. However, the documents are limited in scope and deprive Petitioner the opportunity to verify the records by comparing same to the underlying business records. To hold otherwise would be the equivalent of permitting Respondent to self-verify the hardship declaration. Following the Supreme Court’s reasoning in Chrysafis v. Marks 141 S. Ct. 2482 (2021), such a procedure would deprive the Petitioner of due process. CEEFPA specifically includes a provision for a hearing in these circumstances and as such, Petitioner’s motion for same is granted. CONCLUSION After considering the facts and circumstances of the above-entitled matter, the court finds that Petitioner has made a sufficient showing. The hearing is scheduled for January 10, 2022 at 10:00 A.M. in Part IV. Appearances are required. This constitutes the Decision and Order of the Court. Dated and Entered: November 23, 2021

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

GlobeSt. Multifamily Spring 2022 (Formerly APTS)

February 22, 2022 - February 23, 2022
Hollywood, FLA

Join the industry's top owners, investors, developers, brokers & financiers at THE MULTIFAMILY EVENT OF THE YEAR!


Learn More

China Law & Practice Awards 2021

February 24, 2022
Beijing

The annual China Law & Practice Awards is the jurisdiction's most prestigious legal awards ceremony that applauds China's elite.


Learn More

Legalweek Leaders in Tech Law Awards 2022

March 10, 2022
New York, NY

Recognizing innovation in the legal technology sector for working on precedent-setting, game-changing projects and initiatives.


Learn More

Lateral Partner(s) and/or Of Counsel in the Labor and Employment practice.


Premier Long Island firm (Uniondale) with 3 offices, is seeking a lateral Partner(s) and/or Of Counsel in the Labor & Employment practic...


Apply Now ›

Seeking Justice for Older Pennsylvanians in the Aftermath of Hurricane Ida


Job Overview: This full-time attorney position provides advice, representation, and education for older victims of Hurricane Ida, including ...


Apply Now ›

EMPLOYEE BENEFITS ASSOCIATE


We are seeking an associate to join our Employee Benefits practice in DC or Connecticut. Candidates should have three to six years of employ...


Apply Now ›

MCELROY DEUTSCH MULVANEY & CARPENTER

01/17/2022
CLT Web

McElroy Deutsch mourn the demise of dear friend, colleague, and parnter Suzanne E. Baldasare


View Announcement ›

SAVE INC

01/11/2022
DBR Web

NEW LEADERS OF THE BOARD OF DIRECTORS


View Announcement ›

MEYER, SUOZZI, ENGLISH & KLEIN PC

01/11/2022
NYLJ Web

MEYER, SUOZZI, ENGLISH & KLEIN PC - John V. N. Klein Former Suffolk County Executive and Retired Managing Attorney of Meyer Suozzi Dies at Age 90


View Announcement ›