Schumacher v. Surico

Schumacher v Surico (2025 NY Slip Op 50189(U)) [*1] Schumacher v Surico 2025 NY Slip Op 50189(U) Decided on February 13, 2025 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 13, 2025 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., GRETCHEN WALSH, JOSEPH R. CONWAY, JJ 2024-104 S C Robert J. Schumacher, Respondent, against Christopher Surico, Appellant, et al., Undertenant. Christopher Surico, appellant pro se. Lakis Law, LLC (Dean Lakis of counsel), for respondent. Appeal from an order of the District Court of Suffolk County, Second District (Garrett W. Swenson, Jr., J.), dated December 5, 2023 and from a final judgment of that court entered December 11, 2023. The order denied tenant's motion to dismiss the petition in a nonpayment summary proceeding. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $63,010. ORDERED that so much of the appeal as is from the order is dismissed; and it is further, ORDERED that the final judgment is reversed, without costs, and the petition is dismissed. By notice of petition and petition filed on November 17, 2021, landlord commenced this nonpayment summary proceeding seeking possession based upon unpaid rents from February 2021 to October 2021 at $2,100 per month. In or about July 2021, tenant filed an application with the Emergency Rental Assistance Program (ERAP) for February 2021 through July 2021. On December 2, 2021, tenant was provisionally approved for the months of February 2021 through July 2021 at $2,100 per month, for a total of $12,600. The nonpayment proceeding was subsequently treated as having been stayed. After a motion to vacate the stay was granted, tenant moved to dismiss the petition. The District Court held oral arguments on tenant's motion, reserved decision, and then conducted a nonjury trial on the same day. Following the trial, the District Court (Garrett W. Swenson, Jr., J.), denied tenant's motion by order dated December 5, 2023, and, separately, awarded landlord possession and the principal sum of $63,010. Tenant appeals from the order and from a final judgment entered December 11, 2023. The appeal from the order is dismissed, as the right of direct appeal therefrom terminated upon the entry of the final judgment (see Matter of Aho,39 NY2d 241, 248 [1976]). Although the issue was not raised on appeal, this proceeding was improperly commenced while tenant's ERAP application was pending (see L 2021, c 56, part BB, subpart A, § 8, as amended by L 2021, c 417, part A, § 4 ["eviction proceedings for . . . non-payment of rent or utilities that would be eligible for coverage under [ERAP] shall not be commenced against a household who has applied for [ERAP] . . . unless or until a determination of ineligibility is made."]; cf. Main St. Lofts Yonkers, LLC v Mabuwa, 83 Misc 3d 135[A], 2024 NY Slip Op 51192[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2024]; Ben Ami v Ronen, 79 Misc 3d 14, 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). A summary proceeding commenced in contravention of the above-cited law is void, and therefore the petition here must be dismissed (cf. Yen-Ching Chen v Dickerson, 17 Misc 3d 61 [App Term, 2d Dept, 9th & 10th Jud Dists 2007] [vacating a final judgment and dismissing the petition in a summary proceeding because the proceeding was "void and without vitality" in that it was commenced after an automatic bankruptcy stay took effect]). Accordingly, the final judgment is reversed and the petition is dismissed. GARGUILO, P.J., WALSH and CONWAY, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: February 13, 2025