Papers Considered 1. Letter motion from Petitioner’s attorney dated September 20, 2021 and September 21, 2021 2. Affirmation in opposition from Respondent’s attorney dated October 12, 2021 3. Affirmation in reply from Petitioner’s attorney dated October 15, 2021 DECISION AND ORDER This is an action brought by Notice of Petition and Verified Petition pursuant to New York State Real Property Acts Law (RPAPL) §713(7) to remove Respondent from a side cottage situated on Petitioner’s real property. Respondent filed a hardship application claiming a financial and medical hardship. Before the Court is Petitioner’s request for a “hearing on the issue whether the Respondent can prove sufficient hardship so as to be entitled to protection from eviction under [Emergency Eviction and Foreclosure Prevention Act of 2020, as amended in 2021(CEEFPA)] especially given the undisputed fact that she pays no rent or utilities whatsoever.” As a threshold issue, Petitioner argues that as a nonpaying licensee, Respondent is not a tenant and is therefore not entitled to the CEEFPA protections from eviction. The Court first addresses the applicability of CEEFPA to the instant proceeding. Petitioner relies exclusively on Diamond Ridge Partners, LLP v. Hanspal, 73 Misc.3d 607, ___ N.Y.S.3d ___ (District Court, Nassau County September 14, 2021) and Bibow v. Bibow, 72 Misc.3d 1212(A), 150 N.Y.S.3d 232 (District Court, Nassau County July 28, 2021) wherein the Courts held licensees with no financial obligations as to the premises are not considered tenants under CEEFPA and are not entitled to the statute’s protection and are subject to immediate eviction. While Respondent does not cite to any recent court decisions which interpret CEEFPA, Respondent disputes the precedential value of Diamond Ridge Partners, LLC and Bibow. In Diamond Ridge the respondent used the bankruptcy court stay provisions to remain in the subject premises. In Bibow, the respondent was a familial licensee who had stipulated to vacate the premises. The statement of legislative intent1 shows that the applicability of CEEFPA is to be broadly construed2. The Legislature has stated that: COVID-19 presents a historic threat to public health. Hundreds of thousands of residents are facing eviction or foreclosure due to necessary disease control measures that closed businesses and schools, and triggered mass-unemployment across the state: The pandemic has further interrupted court operations, the availability of counsel, the ability for parties to pay for counsel, and the ability to safely commute and enter a courtroom, settlement conference and the like. Stabilizing the housing situation for tenants, landlords, and homeowners is to the mutual benefit of all New Yorkers and will help the state address the pandemic, protect public health, and set the stage for recovery. It is, therefore, the intent of this legislation to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19. [(L. 2020, Ch. 381, Sec. 3).] In Chrysafis v. Marks, __ U.S. __, 141 S. Ct. 2482, __ L.Ed.2d __ (2021) the United States Supreme Court enjoined CEEFPA finding that CEEFPA violated landlord’s due process rights by depriving the ability to challenge tenants’ certifications of financial hardship. As a result, the New York Legislature enacted Chapter 417, which was signed into law on September 2, 2021, to restore a moratorium on (most) residential eviction proceedings while addressing Chrysafis’ due process holding (See L 2021, Ch. 417, §2 [legislative findings].) Chapter 417 and CEEFPA define “eviction proceeding” the same way. (See L 2021, Ch. 417, Pt C, Subpt. A, §1 [1].) In enacting chapter 417, the Legislature explained that restoring the moratorium was necessary in light of “the ongoing risks posed by residential evictions” during the pandemic, “such as the potential to exacerbate the resurgence of COVID-19, the damage significant numbers of evictions would cause to the state’s economic recovery, and the deleterious social and public health effects of homelessness and housing instability.” (Ch. 417, §2.). As a result of the amendments, CEEFPA now defines “Tenant” very broadly to include “a residential tenant, lawful occupant of a dwelling unit, or any other person responsible for paying rent, use and occupancy, or any other financial obligation under a residential lease or tenancy agreement”. Chapter 417, §1(3). Further, Chapter 417 changed §4, which applies to pending proceedings to now use “respondent” and not “tenant.” The statute now states “if the respondent provides a hardship declaration to the petitioner, the court, or an agent of the petitioner or the court, the eviction proceeding shall be stayed until at least January 15, 2022.” The legislative intent in making that change was to make clear that they were intending to protect a broad range of people subjected to eviction proceedings. See, Ocean Bay Rad, LLC v. Tolliver, ___Misc.3d ___, ___ N.Y.S.3d ___, 2021 WL 4979375, 2021 N.Y. Slip Op. 21287 (Civil Court, Queens County 2021), Common Ground Management Corporation v. Persaud, Index No. LT-300404-21/BX (Housing Court Part J, Bronx County, Hon. Kisha Miller, November 16, 2021) Within the context of the RPAPL as it relates to this proceeding, when addressing who may be evicted in a landlord tenant proceeding, the Prelude to Section 713 states: “A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in [RPAPL] section 735.” Both a tenant and a licensee are covered under the CEEFPA, and a licensee is also covered under RPAPL §713(7) and is by definition a lawful occupant in that they came in under the license of someone with authority to grant it. Indeed, Petitioner even plead this as such in the notice to quit which specifically cites to RPAPL §713(7) as the basis for this proceeding. Indeed, in a case cited by Petitioner, Diamond Ridge Partners LLC, was a commercial case, under the facts and analysis of that case, which is relevant to the analysis here, the Court still stated: In addressing the issue of whether the instant Respondents qualify as “tenants” or “lawful occupants,” a “tenant” may be defined as “[one who holds or possesses premises] by any kind of right or title…[or] one who has the temporary use and occupation of real property owned by another person (called the ‘landlord’), the duration and terms of [the] tenancy being usually fixed by an instrument called a “lease” Black’s Law Dictionary, 11th Ed. Courts defining the scope of “tenant” as contemplated by CEEFPA generally have been “intentionally expansive,” Tzifil Realty Corp. v. Mazrekaj, 72 Misc.3d 748, 150 N.Y.S.3d 865 (2021). As a result, courts have “qualified” an individual asserting a colorable succession claim. Realty Enter LLC v. Williams, 2021 NYLJ LEXIS 360 (Civ. Ct. Queens Co. 2021, Index No. 53712/18), a terminated superintendent (Mazrekaj, supra), an occupant liable for paying use and occupancy (Silverstein v. Huebner, 2021 NY Misc. LEXIS 4268 (Civ. Ct. Kings Co. 2021)). As a result, this Court determines that Respondent, as a licensee, enjoys the protections of CEEFPA. CEEFPA Section 11 provides that when a respondent in an eviction proceeding files a hardship declaration, a rebuttable presumption is created that the respondent has been adversely affected by the pandemic and is experiencing a financial and/or medical hardship. If that declaration is not challenged, the matter is stayed until the expiration of the moratorium, currently set at January 15, 2022. This Court is satisfied that, given the proceedings had to date, Petitioner has met the burden to request a hearing based on the good faith belief to rebut Respondent’s hardship declaration. Casey v. Whitehouse Estates Inc., 73 Misc.3d 562, 570-571, __ N.Y.S.3d __ (Supreme Court, New York County September 15, 2021) As a result, a hearing with a finding of fact is required to determine whether Respondent is in fact experiencing a financial and/or medical hardship as a result of the COVID-19 epidemic and is entitled to a stay of the eviction proceeding. However, in advance of the hearing, the Court grants leave to Petitioner to request specific discovery of Respondent’s financial and/or medical hardship which may be granted after demonstrating ample need. Smilow v. Ulrich, 11 Misc.3d 179, 806 N.Y.S.2d 392 (Civil Court, New York Court 2005) Any request for discovery must be submitted to the Court by email submission on notice to Respondent’s counsel by 5:00 pm Friday, December 3, 2021. If such a request is made by Petitioner, Respondent shall have until 5:00 pm Monday, December 6, 2021 to either comply with the requests or submit written objections to the requests. Further, this Court is setting this matter down for a rebuttal hearing on December 10, 2021 at 10 am to determine whether the Respondent is experiencing a financial and/or medical hardship due to the Covid-19 pandemic. Petitioner has the burden of proof. Bibow v. Bibow, 72 Misc.3d 1212(A), 150 N.Y.S.3d 232 (District Court, Nassau County July 28, 2021). This constitutes the decision and order of the court. Dated: December 2, 2021
