The Emergency Rental Assistance Law: Using the Constitution to Crack the Courthouse Doors Open


Since the onset of the COVID-19 pandemic, New York State’s legislative bodies have crafted new laws to help prevent tenants’ evictions. The state passed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“CEEFPA”),[1] allowing tenants to self-certify that they suffered from hardship because of the pandemic.[2] As a result, pending evictions proceedings against the tenant could be stayed, and the landlords were not permitted to evict the tenants based on the accrued rent because of the COVID hardship.[3] Originally, landlords did not have a legal mechanism within the law to challenge the COVID hardship declarations filed by tenants.[4] Landlords sued New York State’s Chief Administrative Judge, County Sheriffs, and other officials throughout the state— challenging CEEFPA on constitutional grounds.[5] Their main argument proffered was that since the law did not have a mechanism to challenge the hardship declarations, it violated the landlords’ due process rights.[6] The law was struck down partially by the United States Supreme Court, which held that the “scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.”[7] This holding, while plain, cascaded into the subsequent laws enacted to prevent eviction.[8] Most notably, courts are currently struggling with New York’s Emergency Rental Assistance Program (“ERAP”) because, while it differs from CEEFPA, it also raises due process concerns.[9]

What is ERAP

In 2021, New York amended its ERAP law to allow tenants to have an automatic stay in their eviction proceedings if they applied for ERAP assistance payments.[10] The tenants would file with a state agency, and while waiting for a determination about whether they were eligible to receive ERAP payments, their case would be stayed.[11]

Unsurprisingly, a myriad of cases followed. Landlords began suing across the state, and the lower courts struggled with how to cure ERAP’s alleged due process violations.[12] While some courts identified the constitutional issues in the law, others read the text of the law strictly without regard to the Constitution.[13] As a result, New York’s trial courts are split, and the state’s appellate courts have yet to resolve the matter. What follows is a recitation of the current split in the trial courts.

Where the ERAP Stay Survived

In a non-payment case that arose out of Brooklyn, the Honorable Jack Stoller allowed an ERAP stay to remain in place after a landlord challenged the constitutionality of the stay.[14] There, the court reasoned, “ERAP, however, is an assistance program that provides benefits to landlords — accrued rent arrears — as well as to tenants.”[15] Because the landlord would eventually be paid the accrued rent owed, the court determined that the landlord also received benefits under the law, and as a result, the ERAP stay survived.[16]

In Manhattan, the Housing Court took a more direct approach to the ERAP issue when applying a textualist review of the law. [17]The court asserted, “The statute does not provide the Housing Court with the authority to determine whether a person is eligible for ERAP assistance.”[18] There, the court distinguished the matter from the Supreme Court’s decision in Chrysafis v. Marks because the law at issue there was the CEEFPA statute, which was different from the ERAP law.[19]

In Suffolk County, the District Court was confronted with a motion to vacate an ERAP stay in a holdover proceeding where the landlord wanted to stop renting the property entirely so that it could be used for the landlord’s personal use.[20] The court ruled that such was  insufficient grounds to vacate the stay, but the court noted that there would be situations where the rejection of the ERAP assistance would be enough to move forward with an eviction “immediately.”[21]

Where the Stay Was Lifted

In reviewing a challenge to an ERAP stay, Judge Hackeling of Suffolk County stated,

The Court is at a loss to understand how this new statute addresses the due process issues raised by the U.S. Supreme Court in Chrysafis v. Marks, which struck down New York’s prior moratorium statute which allowed tenants a right to unilaterally grant themselves an indeterminate stay without requesting same from a Court. Under paragraph 8 of ERAP, the tenants again are authorized to unilaterally grants themselves a stay without mention of a mechanism for Court review unless the eviction involves (see ERAP paragraph 9) substantial infringement on other tenants rights or intentional damage to leasehold premises.[22]

This decision plainly addressed the unconstitutional nature of the ERAP law.[23] However, the court invoked the canon of constitutional avoidance to evade the constitutional issues and determined that the court had the power to decide ERAP eligibility based on the facts in this particular case.[24] Given that the tenants in question had another home to move to, the court ruled they were not experiencing “housing instability,” required under the ERAP law.[25] Thus, the stay was lifted.[26]

In Brooklyn, the Housing Court outlined how it “would be counterintuitive and prejudicial to preclude Petitioner from challenging an ERAP stay where approval of the application will not result in the preservation or creation of a tenancy.”[27] Even if the application was approved and the rent was paid, the court vacated the stay because the remaining tenant did not have any succession or possessory rights to the unit. The landlord had also asserted his intention not to renew the lease.[28] As a result, the stay was vacated.[29]

Notably, the tide continued to turn against the strength of the ERAP law when the Bronx Housing Court also issued a decision to vacate an ERAP stay. There, the court recognized that “[i]f this Court were to categorically refuse to consider such arguments[,] the same concerns that were implicated in Chrysafis v Marks would arise.”[30] The court went as far as to clarify, “[t]hat the petition includes use and occupancy in its prayer for relief is of no moment here where there is no indication of any ‘written or oral rental agreement,’ as is required under the RPAPL § 702 definition of ‘rent,’ incorporated by reference in the ERAP Law.”[31] As more and more courts have a chance to review the constitutionality of the ERAP law, the split between New York’s trial courts continues to expand.

The Queens Housing Court decided to engage in a fact-specific review of the ERAP application to determine eligibility in the court rather than wait for an administrative agency decision.[32] The court asserted that since the landlord would not accept  ERAP payments and because the tenant had not filed all of the necessary documents with the state, the tenant was ineligible for assistance.[33] This decision is the most recent in a line of cases cracking the foundation of the ERAP law.

Why it Needs to go:

On its face, the ERAP law gives tenants the ability to halt an eviction case against them because it merely requires tenants to file an application with an administrative agency.[34] Landlords are denied their due process rights because it allows tenants to circumvent judicial oversight.[35] The best-case scenario for a landlord is that a judge will “blue pencil” the law to allow for a judicial determination on the tenant’s eligibility. However, the proper remedy needed for the automatic stay provision of the ERAP law is for a competent appellate court to deem the automatic stay provision of the ERAP law unconstitutional.[36] While the varying trial courts are performing a judicial olympics to see how to evade the constitutional issues with the ERAP law,[37] the appellate court should resolve the conflict and create consistency for both tenants and landlords. To preserve their rights, landlords are forced to incur costly legal fees in the hopes that they will prevail on their claims in court. Tenants likewise are informed that their eviction proceeding is paused, which may grant a sigh of relief. However, the comfort in the protection created by an unconstitutional law is misplaced. Tenant expectations about how much time they have before an eviction comes are harmful to them in the long run. Tenants may have a mistaken belief about how much time the ERAP stay will give them to catch up on the rent if the courts vacate the stays more often. This uncertainty could prejudice the tenants by interrupting their plans to pay back rent. Given the split in the court’s decisions, the unconstitutional nature of the law cannot be understated. The legislature and high courts should remove the confusion and allow landlords and tenants to litigate their cases.

[1] S. 9114, 2020 Leg., Reg. Secs. (N.Y. 2020).

[2] Id.

[3] Id.

[4] Chrysafis v. Marks, 544 F. Supp. 3d 241, 252–53 (E.D.N.Y. 2021).

[5]  Id.

[6] See id.

[7] Chrysafis v. Marks, 141 S. Ct. 2482 (2021) (citing In re Murchison, 349 U.S. 133, 136 (1955)).

[8] S. 50001, 2021 Leg., Reg. Secs. (N.Y. 2021).

[9] See id.

[10] See Abuelafiya v. Orena,  155 N.Y.S.3d 715, 718 (Dist. Ct. 2021).

[11] See id.

[12] See infra notes 13-31.

[13] See infra note 17.

[14] See Harbor Tech LLC v. Correa,  No. 60788, slip op. at 5-7 (N.Y. Civ. Ct. Oct. 25, 2021).

[15] Id. at 5.

[16] See id.

[17] 204 West 55th St., LLC v. Mackler, No. 300225, 2021 WL 6805121, at *4 (N.Y. Civ. Ct. Dec. 2, 2021).

[18] See id.

[19] See id.

[20] Carousel Props. v. Valle, No. LT-0496-2021/BR, slip op. at 1 (N.Y. Dist. Ct. Feb. 16, 2022).

[21] Id. at 2.

[22] Abuelafiya v. Orena, 155 N.Y.S.3d 715, 718 (Dist. Ct. 2021) (citation omitted).

[23] See id.

[24] See id.

[25] Id.

[26] Id.

[27] Actie v. Gregory, No. 300703-20/KI, slip op. at 3 (N.Y. Civ. Ct. Feb. 18, 2022).

[28]  Id.

[29] Id.

[30] 2986 Briggs LLC v. Evans, No. 308118/21, slip op. at 4 (N.Y. Civ. Ct. Mar. 22, 2022).

[31] Id. at 5.

[32] Karan Realty Assocs. LLC v. Perez, No. L & T 306418/21, 2022 WL 965234, at *4 (N.Y. Civ. Ct. Mar. 25, 2022).

[33] See id.

[34] S. 50001, 2021 Leg., Reg. Secs. (N.Y. 2021).

[35] See 204 West 55th St., LLC v. Mackler, No. 300225, 2021 WL 6805121, at *4 (N.Y. Civ. Ct. Dec. 2, 2021).

[36] See 2986 Briggs LLC v. Evans, No. 308118/21, slip op. at (N.Y. Civ. Ct. Mar. 22, 2022).

[37] See id.


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