Recitation, as required by CPLR §2219(a), of the papers considered in the review of petitioner’s motion to declare the hardship declarations invalid, for a status conference, and for amendment of the warrant of eviction: Papers Numbered Notice of Motion & Affidavit/Exhibits Annexed 1 (NYSCEF No.3-7) Affirmation in Opposition & Affidavits/Exhibits Annexed 2 (NYSCEF #8) Upon the foregoing cited papers, the decision and order on petitioner’s motion is as follows. PROCEDURAL HISTORY This holdover proceeding was initially settled with a stipulation dated October 30, 2019, whereby respondents Charles Wittmann and Emiliadia Hansen consented to a final judgment of possession and issuance of a warrant of eviction (with execution of the warrant stayed through January 31, 2020).1 The warrant issued on November 14, 2019. Thereafter, respondents filed an order to show cause, which was granted to the extent of staying execution of the warrant through March 18, 2020 on consent on March 2, 2020. Before execution could occur, all eviction proceedings were suspended as a result of the COVID-19 public health emergency (see Administrative Order 68/20). After the resumption of eviction proceedings, petitioner filed a motion to execute upon the warrant. After respondents were referred to counsel (New York Legal Assistance Group [NYLAG]), the parties, all appearing through counsel, executed a stipulation (dated December 9, 2020) granting petitioner’s motion and staying execution of the warrant through January 15, 2021. With the enactment of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (“EEFPA”) [L 2020, ch 381], execution of the warrant was further stayed upon respondents filing hardship declarations. After the US Supreme Court enjoined enforcement of Part A of EEFPA (which covered eviction proceedings) (see Chrysafis v. Marks, 594 US __, 2021 WL 3560766 [2021]), a marshal’s notice was served upon respondents. Respondents, pro se, filed orders to show cause to discharge counsel and to stay execution of the warrant, which were signed by this court and given a return date of September 21, 2021. At the September 21, 2021 appearance, NYLAG appeared for respondents and withdrew the pending orders to show cause. The proceeding was adjourned to October 26, 2021 for petitioner to make a motion to challenge the hardship declarations under Section 10 of Part C, Subpart A of L 2021, ch 417 (which was enacted on September 2, 2021). After the motion seeking the invalidation of the hardship declarations, satisfaction of the “conference” requirement, and amendment of the warrant was made by petitioner, respondents, through counsel, submitted opposition. The court heard argument on the motion on October 26, 2021 (via Teams, with petitioner present in court) and reserved decision. DISCUSSION I. Satisfaction of “conference” requirement and amendment of warrant requests. The court first addresses the motion’s request that the “conference” requirement be deemed satisfied. The court grants this request, as Administrative Order (AO) 245/21, which was issued on by Chief Administrative Judge Lawrence K. Marks on August 13, 2021, requires the court to initiate a conference in any eviction proceeding filed prior to March 17, 2020 (including cases where a warrant has issued). Since this proceeding was filed in 2019, it is subject to AO 245/21. The court deems the argument on petitioner’s motion on October 26, 2021 to suffice as a conference pursuant to the Administrative Order. A status conference is also required by L 2021, ch 417 (Part C, Subpart A, Section 6) in any proceeding where a warrant issued prior to the effective date of the statute (September 2, 2021). As a warrant issued in 2019, the status conference requirement applies to this proceeding and is satisfied by the argument on petitioner’s motion. Nonetheless, execution remains stayed pending the outcome of the remainder of petitioner’s motion. Petitioner’s request for an amendment of the warrant of eviction must be held in abeyance pending an ultimate determination on the request to invalidate the hardship declaration. Part C, Subpart A, Section 6(b) of L 2021, ch 417 requires amended language before a warrant issued prior to the COVID period can be effective. Since the first alternative in that section is inapplicable here (since hardship declarations have been submitted), the second alternative applies. The warrant must state that the tenant is ineligible for a stay because the court has found either that the hardship claim is invalid or that the respondent is persistently and unreasonably engaging in “nuisance”-type behavior. Accordingly, the court must decide the issue of whether the hardship claim is invalid before determining whether the warrant can be amended. Accordingly, the warrant amendment request will be held in abeyance while the challenge to the hardship claim is adjudicated. II. Request to declare hardship declarations invalid. As for petitioner’s request to declare respondents’ hardship declarations invalid, the governing statute states: “[a] motion may be made by the petitioner, attesting to a good faith belief that the respondent has not experienced a hardship, with notice to the respondent, and the court shall grant a hearing to determine whether to find the respondent’s hardship claim invalid.” L 2021, ch 417, Part C, Subpart A, Sec. 10. Here, petitioner has made a motion on notice to respondents’ attorneys. Therefore, the court must determine whether petitioner has attested to a good faith belief that respondents have not experienced a hardship. The motion is supported by an affidavit from petitioner, who swears to a familiarity with the facts and circumstances of this proceeding. After recounting the history of this proceeding, petitioner states that Mr. Wittmann owns or has an ownership interest in a property in Wantagh, New York. Petitioner states that Mr. Wittmann has told him about the property and asserts that the existence of this property belies the purported difficulty by respondents in relocating. Petitioner next professes to a belief that respondents received enhanced unemployment benefits and federal stimulus checks, which resulted in an increase in income for respondents during the COVID period. He also references the fact that respondents have not paid rent/use and occupancy, or for gas, electricity, and water, thus saving them significant expenses that were borne by petitioner and his family. Petitioner (in his affidavit) then references the affidavits from respondents (from January 2021) that described two attempts (applications) in nine months to locate new housing as evidence that respondents have not located new housing because of lack of effort. Finally, petitioner disputes that Ms. Hansen’s heart murmur has been an impediment to being employed (and thus earning income), as he states that she was previously employed and rented this apartment. He also expresses skepticism about the severity of the condition insofar as he professes to have observed Ms. Hansen has exposing herself to cigarette smoke and abusing alcohol. In opposition, respondents first encourage the court to deny petitioner’s motion because it does not specifically request a hearing. However, the relevant statute only requires a petitioner to make a motion and attest to a good faith belief that a respondent has not experienced a hardship. If this is done, the court “shall” grant a hearing. This is an unequivocal directive that the court must follow once the motion and good faith elements are met. Accordingly, petitioner’s failure to specifically request a hearing is not fatal to the motion’s viability. Respondents next assert that purported home ownership should not be considered as an element of financial hardship. While the court agrees that ownership of a home, alone, is not demonstrative of financial hardship during the COVID period, petitioner’s assertion of a belief in his affidavit that Mr. Wittmann owns another property specifically relates to the ability to relocate. Since Box A on the hardship declaration form (which was checked by both respondents here) specifically references moving expenses and “difficulty I have securing alternative housing make it a hardship for me to relocate to another residence during the COVID-19 pandemic” (Section 4) (emphasis added), the possible existence of another property is pertinent. To be certain, petitioner has not established at this juncture that respondents own or even have the ability to relocate to another property; however, the issue at hand is, discretely, whether petitioner has attested to a “good faith” belief that a hardship has not been experienced. See e.g. Sanchez-Tiben v. Washington, 2021 NY Slip Op 21276 [Civ Ct, Bronx County 2021]. With regard to petitioner’s statements about respondents’ income, respondents first assert that receipt of unemployment benefits should be de facto proof of hardship and not a basis for a good faith belief of a lack of hardship. However, unlike the Tenant Safe Harbor Act (L 2020, ch 127), the law at issue (L 2021, ch 417, Part C) does not explicitly list receipt of unemployment benefits as a factor to be considered as evidence of hardship. Indeed, at the end of the language after Box A in the hardship declaration form, it states: “[t]o the extent that I have lost household income or had increased expenses, any public assistance, including unemployment insurance that I received since the start of the COVID-19 pandemic does not fully make up for my loss of household income or increased expenses.” (Emphasis added). Therefore, petitioner’s stated belief that respondents received unemployment benefits and other federal stimulus payments that made up for lost income is germane to the standard of hardship incorporated in the declaration. The court again stresses that the factual determination about income is still to be made; the issue here is petitioner’s good faith belief. Finally, although it was not explicitly raised in the opposition papers, counsel for respondents at argument urged the court to disregard petitioner’s statements about Ms. Hansen’s heart murmur since such a condition necessarily puts her at higher risk of negative COVID-19 complications per the relevant Centers for Disease Control and Prevention (CDC) guidance. However, this is not in the motion record and the court cannot take judicial notice of the same since there is no diagnostic information about Ms. Hansen’s condition before the court. In any event, the court finds petitioner’s statements about Ms. Hansen’s potential heart condition to be lacking in relevant details and conclusory. Nonetheless, in consideration of the “totality of the circumstances” before the court (Sanchez-Tiben, 2021 NY Slip Op 21276, *3 [citing Wells Fargo Bank, NA v. Van Dyke, 101 AD3d 638, 639 [1st Dept 2012]]), petitioner has demonstrated a “good faith” belief that respondents have not experienced a hardship. Accordingly, the court grants petitioner’s motion at this juncture to extent of scheduling a hearing on the issue of whether respondents’ hardship claim is invalid. See L 2021, ch 417, Part C, Subpart A, Sec. 10(a); see also Matter of Cabrera v. Humphrey, 192 AD3d 227, 233 [3d Dept 2021] [Hearing necessary to resolve disputed issues of fact where claims of COVID-related hardship are at issue].2 CONCLUSION Upon the foregoing determinations, petitioner’s motion is granted insofar as the “conference” requirements are deemed satisfied and petitioner is entitled to a hearing as to whether respondents’ hardship claim is invalid. The hearing is scheduled for November 19, 2021 at 3:00 PM. Any pre-marked exhibits shall be emailed to the court no later than November 18, 2021. Virtual appearances are permitted; however, any witness must have video capability. Petitioner’s motion to amend the warrant is held in abeyance pending the outcome of the hearing. Execution of the warrant is also stayed pending the outcome of the hearing. This Decision/Order will be filed to NYSCEF. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: November 1, 2021
