Where the government appropriates a right of access to private property, that, like a physical taking, requires compensation. The right to exclude is “a fundamental element of the property right.” Kaiser Aetna v. Although this ruling pertains to a taking, arguably, like in a case of trespass, one may seek an injunction in lieu of damages to prevent this intrusion into property rights. This ruling opens the door, finally, to the protection of private rights which have been subjugated mercilessly by the relentless expansion of public rights. In finding that California’s access regulation constitutes a per se taking, the court found that when the government restricts an owner’s ability to use his own property, that is a taking. It begins to answer the question, can a public agency regulate private property rights? This decision is a major victory for property owners, particularly as it relates to access. It has been raised again by the United States Supreme Court in the case published on June 23, 2021: Cedar Point Nursery v. One of those rights, the ability to exclude others, is now on the forefront. No further 14 day notice need be served by the sheriff.Ownership of real property comes with a bundle of rights. Īccordingly, the tenants' application to vacate their default and stay their eviction is denied. It does not prohibit this court's denial of the tenants' application to seek a court ordered stay of this court's prior warrant of eviction. The court notes that the moratorium statute only vitiates this court's authority to execute a new warrant of eviction. ) Absent the filing of a hardship declaration or a pending application to implement same, no stay exists. ( See generally Ramanathan v Aharon, 109 AD3d 529, citing Martin v City of Cohoes, 37 NY2d 162. The court need not address this issue as the "law of this case" is that the tenants had an opportunity to establish their right to a hardship stay and withdrew said application. Supreme Court in its Chrysafis decision the law was amended to provide an opportunity for landlords to make a written motion to challenge a tenant's declaration of COVID-19 hardship. Part C of the statute that amended the ERAP statute also amended New York's "COVID-19 Hardship Moratorium" statute granting a stay until January 15, 2022, upon the filing of a "hardship declaration." (L 2021, ch 417, § 2, part C.) In an effort to correct the constitutional infirmities determined by the U.S. Eligibility having been determined, the ERAP stay is vitiated. ) As such, it need not delve into the realm of constitutional propriety as this matter can be decided upon its facts by simply determining that the statute inherently allows for the court to also be allowed to determine "eligibility." The court finds as a matter of fact that the tenants are ineligible for ERAP funding as they are not experiencing housing instability by virtue of the fact that they own a second house they may relocate to. ( See generally People v Liberta, 64 NY2d 152 United States v Rumely, 345 US 41 Collado v Boklari, 27 Misc 3d 161.
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New York law requires this court to construe its statutes so as to avoid constitutional impairment. Supreme Court ruled said statute unconstitutional. Said application was withdrawn after the U.S.
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The tenants presently owe over $113,000 of rent. Īfter service of the sheriff's 14 day eviction notice, the tenants filed an order to show cause dated July 15, 2021, seeking to vacate their default asserting New York's COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 moratorium. To this date the court has not received the tenants' hardship declaration, although they have had multiple court appearance opportunities to file same. The tenants assert they filed such a declaration dated May 4, 2021, via fax but could not produce a written confirmation of same. A warrant of eviction was issued May 26, 2021, as the tenants did not appear and did not file a COVID-19 hardship declaration prior to said date. The landlord's 2020 nonpayment petition was adjourned as a result of the court's COVID-19 closure until May 6, 2021. The tenants defaulted in making rent payments after March 2020. The lease was in writing and for one year and one week running through August 31, 2020, at a monthly payment rate of $6,800.
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It is either conceded or not disputed by the parties that the tenants rented the real property premises owned by petitioner Mary Abuelafiya (hereafter the landlord) at 3 Dolphin's Rise, Lloyd Harbor, New York, on August 24, 2019.