Can a NY Section 8 Tenant With an ERAP Application be Evicted for Nonpayment?

Can a NY Section 8 Tenant With an ERAP Application be Evicted for NonpaymentNew York landlords may evict tenants where the stay imposed by a Section 8 subsidized tenant’s Emergency Rental Assistance Program (ERAP) application is futile due to the current regulations that provide such applications will be reviewed after all applications from non-subsidized tenants have been processed. A landlord commenced a nonpayment eviction proceeding in January 2022. The tenant applied for ERAP assistance on June 16, 2021. The ERAP application was “still pending”. No provisional letter of approval has been issued. Once a tenant files an ERAP application, an automatic stay is imposed on nonpayment and holdover evictions pending the approval/rejection of the ERAP application.

The landlord moved to vacate the ERAP stay. The landlord asserted that the COVID-19 pandemic created a financial hardship for both tenants and landlords. It further claimed that the current ERAP regulations provide that subsidized housing tenants are not currently able to get paid. The landlord contended that it cannot wait any further to receive relief from ERAP, especially where the release of funding will continue to be delayed or potentially denied to subsidized housing tenants.

The landlord also argued that the ERAP stay is “futile” and noted that NYS Office of Temporary and Disability Assistance (OTDA) website provides that applications from subsidized house tenant are currently not able to be paid and will be paid after all other eligible applicants have been reviewed and paid. The landlord argued that this renders the tenant’s ERAP application futile.

Numerous courts have found vacatur of the ERAP stay warranted under certain circumstances to avoid inequity, fraud or futile results. The tenant’s application has been pending approximately 18 months and his eligibility has not been determined and he has not received a provisional approval letter. The court vacated the ERAP stay based upon equity considerations. The court reasoned that the ERAP stay has been inequitable to landlords. The court opined that the protracted amount of time (18 months) that the application has been pending coupled with the realization that because of the tenant’s housing status that monies will not be paid and if so only after other eligible applicants are paid, works as an injustice to the landlord who has suffered in this protracted process.

The court concluded that forcing the landlord to wait any longer would only exacerbate the inequity placed upon the landlord in this process. Thus, the stay was lifted because of the inequity suffered by the landlord in the protracted amount of time and the reality that the likelihood of the tenant securing any monies from ERAP is slim to none. Accordingly, landlord’s motion to vacate the ERAP was granted. Horizon Realty of Mt. Vernon LLC v. Dabbs, City Court, Mount Vernon, Case No. 0035-22, decided January 31, 2023. Johnson, J.

Contact Rochester Landlord Attorneys Justin R. Friedman and Robert Friedman at 585-484-7432 for advice on evictions, leases, rent collection and the proper screening of tenants.