A Boulder, a Hill and a Deadbeat

Here’s a text a resident of my park in northern New York who I will call Maria Gutierrez recently sent to Mike, the manager of that park:

Hi Mike, I really need your help.  What do I have to do to take Casey off of this lease?  I don’t want him here anymore.  I have been through a lot with him.  I have been in a verbal and abusive marriage for a long time.  I am NOT safe with him.  He is not home right now.  My son and daughter are here now to watch over me.  Please what do I need to do?

Casey is Maria’s husband.  Here’s my response and Mike’s reply:

-I am sorry to hear that, but that is not our issue – and I don’t even know whether I believe her.  She does not have a good track record with the truth.

-I agree.

(A quick Google search shows that the Spanish name ‘Gutierrez’ means ‘son of Gutiere’, and that ‘Gutiere’ is a Hispanicisation of the Germanic name ‘Walter’.  A Greek friend of mine is named ‘Germanacos’, and my Irish grandfather was named ‘English’.  Romulus Augustulus was succeeded by Alaric.  Germanic – speaking people were quite successful in spraying their DNA around the periphery of Europe.  All scenes portrayed on this blog, whether actual or created, are based on authenticated fact.  The people I call Casey and Maria Gutierrez are real people, but they have different names in real life.  The etymology of the name ‘Gutierrez’ is true.)

I have written about the Gutierrezes before.  Their son, Ike, stole the stove and refrigerator from a park-owned home where he lived, sold them on EBay, and then complained that we violated the warranty of habitability by not providing him with a fridge and a stove.  Casey passes counterfeit bills.  He drives a brand-new truck and advertises expensive living-room furniture for sale on Facebook Marketplace, but he and Maria have been short on rent for two years.  Asking them to pay their debts is like pushing on a string.  We helped them get assistance from Catholic Charities, HEAP and the county Department of Social Services.  They were almost caught up for a month in 2021 – and then ERAP hit.

ERAP is the Emergency Rental Assistance Program, a joint federal and state COVID relief program passed in 2021.  Under the federal statute,Congress apportioned a chunk of money to be allocated to each state and to the District of Columbia to be distributed to citizens for rental relief.  A slug of that chunk was allocated to New York in early 2021.  Albany got around to distributing it starting in June of that year.  Applications blew through available money quickly.  Some more money was allotted.  That was distributed and funds dried up again.  As of fall of this year, all available funding was gone.  Congress, soon to be camerally divided and sick of Pandemic-related policy measures, is unlikely to allocate any more.

The New York State legislation that implements ERAP specifies that a tenant cannot be evicted for non-payment so long as he or she has an ERAP application outstanding. Until late last year, this provision applied vacuously, because a federal and a state eviction moratorium prohibited all property owners from evicting anyone.  It sprouted teeth when the state moratorium was overturned on the ‘shadow docket’ by the Supreme Court in Chrysafis v. Marks. Once that happened, residents looking for a get-out-of-jail free card turned to ERAP.  It didn’t matter if an application was filed in good faith, if there was a reasonable chance of the applicant’s being reimbursed, if there was any money available for distribution, if the application included all required information, or if the applicant had already maxed out all the funds that he was allowed to receive under the federal and state statutes.  So long as an ERAP application was outstanding, the applicant was surrounded by a super-power extra-special force field.

This was challenged in early 2022 by the Office of Temporary and Disability Assistance (“ODTA”), the state agency tasked with distributing ERAP funds.  ODTA refused to accept any more applications, claiming that, since it had no more funds to distribute, it did not make sense for it to be forced to accept more applications to distribute funds in anticipation of the legal equivalent of a dry retch.  A tenants-rights group sued and Judge Lynn R. Kottler, of the Supreme Court of New York County, in Maria Hildago et al v. The New York State Office of Temporary and Disability Assistance issued a preliminary injunction requiring ODTA to continue accepting applications.  The reasoning, the court said, was that the burden on the ODTA of accepting applications was de minimis.  All they had to do was let them pile up on some clerk’s desk.  What’s so hard about that?  The burden on tenants, by contrast, was severe.  As soon as the get-out-of-jail-free card was removed, they would face the threat of eviction if they did not pay their contractual obligations.  Given the foregoing, it was a no-brainer.  Here’s the money quote:

[T]here is little to no harm in directing respondent to begin accepting ERAP applications again. Logistically, all respondent need do is turn the appropriate functionality of its website on and perhaps, although not explained by respondent, review applications for eligibility. Such concerns cannot outweigh petitioners’ potential evictions from their homes and due process to participate in a federal assistance program passed for their benefit in response to the ongoing Covid-19 pandemic

What Herrhonor did not say was that three parties were involved in the case, although only two were represented at court.  Any ERAP application involves a resident, a property owner, and the ODTA.  Property owners are severely burdened by frivolous ERAP applications because these applications require them to lose revenue without a corresponding reduction in expenses.  However, since property owners were not represented in the case, their interests were ignored.  By narrowing the focus of inquiry, the court was able to perform a rhetorical sleight-of-hand that did not so much cheat land owners of contractual and property rights as simply air-brush those rights out of the picture. 

The original Hildago ruling specified that, if federal funding were cut off, the issue would be revisited.  The real estate industry ground its teeth and sighed when it heard that, certain that no more federal ERAP money would be forthcoming.  That did not prove to be entirely true.  Governor Hochul made a few requests, some of which bore fruit.  Chuck Schumer took care of his home state.  Some more money did arrive over the course of 2022, in dribs and drabs.  But the reasonable expectation of further funding did eventually run out, like Texas tea in a played-out oil well, in Q3 2022.

A ray of hope appeared on December 14 of this year.  On that date, Judge Kotler vacated the Hildago injunction effective January 15, 2023.  The ODTA will not be required to accept ERAP applications after that date, provided no additional funding for the program is received from the federal government.  The stipulation issued by the court included a process pursuant to which the petitioner can request the ODTA to begin accepting applications again if further funding becomes available, and a process by which the ODTA can respond to those requests.[1]  With luck, this will be the death, if not of ERAP, at least of the get-out-of-jail-free card that ERAP has become.

The Gutierrezes took full advantage of the get-out-of-jail-free card while it was available.  They applied for ERAP three times, once in June of 2021, another time just after the first Hildago ruling came down in January of 2022, and a third time in September 2022.  Each time they applied, they received less than the amount that was requested.  That was usually because, by the time their ERAP application was approved and their award paid out, they had already racked up several more months’ debt that accrued between the time of the application and the pay-out.[2]  When their ERAP payouts fell short, they scrambled, found charities to help them, scraped money together.  But beginning in August of this year, they simply stopped paying.  When I asked Casey what was going on, he would tell me, “Speak to my wife.  She handles the finances.”  When I asked Maria, she would say “Speak with Casey”.  They did not respond to texts, voice mails or emails.  They stopped answering the door.  Like Shrödinger’s cat, they were never seen together – except through the window of a truck moving at a fast but unmeasurable speed in unmapped sections of the park and adjacent roads.

We served them with a thirty-day notice in early September of this year.  A few days after they received the notice, they filed their third ERAP application.  At the time of the application, they were seventeen hundred in the hole.  They applied for back rent, plus three months’ worth of prospective rent, for a total award of $3,920.  When I found out that they had applied for ERAP relief, I asked our attorney whether we should drop the case.  She said that we should not drop it, but that we should be prepared for the judge to request an adjournment until their application was approved or denied.  When we finally got to court in early December, the legal aid attorney who represented the Gutierrezes swore up and down that the park would be paid every penny it was owed through ERAP shortly.  The judge chose to give the ODTA a few more weeks to do its magic, but he penciled in a follow-up court date of December 22.  If the park were not made whole through ERAP by that date, the judge said, he would issue a warrant of eviction.

A few days later, my phone farted and a message from ODTA materialized.  I had been paid…$1,700 through ERAP.  The additional $2,220 that Maria and Casey had racked up in the interim between the application date and the court date was not covered by the ERAP award.  When I discussed this with our attorney, she told me that we could tell this to the judge on the twenty-second.  She said that our chances of winning on the merits were good.

Then, the Hildago vacatur ruling was issued.  It began to look a lot like Christmas

Then, my lawyer made my phone fart again, this time from way out in left field.  She said that the judge who had been hearing our case had taken a job doing side work with the Legal Aid Society.  Because that created a conflict of interest, he could not hear the case anymore.  The only other judge (it is a small town) was a former partner of the lawyer, so he was conflicted out, too.  The court had referred the issue to the Office of Court Administration.  They would try to find someone else to hear the case, but there was no guarantee that they could do that quickly.  I could speed the process by hiring another lawyer, but that would mean paying twice for the same service, as in a divorce proceeding.

Then, Mike, the manager at that park, called me at 6:00 AM.  He said that the night before, he had gotten a call from Maria saying that her home had an uncontrollable leak.  He had driven over at 11:00 PM and shut the water off, but he had not done the repair, because he wanted to consult with me first.  “What should I do?”, he asked.  I said,

-Fucken shameless.  Shoot your parents, claim orphan benefits.

-You remember her son, Ike?

-The little prick who stole the applicances?

-He was there.  He yelled at me and told me that his mother shouldn’t have to spend the night without water.  I said I wasn’t going to do the repair until I spoke with you.

-I hope you gave him a big kiss for me.

-What should I do?

-Fix it.

-That’s not fair!

-No, it’s not, but if we don’t fix it, we will be in a world of hurt when we eventually get to court.

You put a few bucks on Argentina.  You short the SPYs.  The market tanks.  The good guys win the World Cup in a shoot-out.  Things are going well.  Then, Wham.  The world has its way with you.  I asked Mike, “Did you see any evidence of domestic abuse?”  He said,

-She asked me to help her again.

-What did you say?

-I told her to call the police.

-Send her an email or a text to that effect.  That’s horrible if it is true, but it’s a job for law enforcement, and I don’t even know if she is telling the truth.  Say something like that in the text – except the part about her lying.

-Of course.

-Thank you.

Before the Germanics came out of the west, Tantalus was the king of a Greek-speaking kingdom called Sipylus.  When the Gods came to visit him for dinner, he served them the thing dearest to him, i.e. his son, Pelops.  The gods recognized that the dish served to them was Homo sapiens, punished the father and rebuilt the son, better, stronger and faster.  When it came time to snap the bones back together, the gods realized that the goddess Demeter, who was still grieving the partial loss of her daughter, Persephone, had absent-mindedly eaten the boy’s shoulder.  Because of this, when Pelops was rebuilt, he received a prosthetic shoulder, alleviating the need for rotator cuff surgery in middle age.  Tantalus was sentenced to stand thigh-deep in a clear stream of water underneath the bough of a fruit tree for eternity.  When he bent down to drink the water, the stream receded.  When he reached up to pick fruit from the branch just above his head, the branch bent out of the way. 

That’s where the word ‘tantalize’ comes from.  The Peloponnese is ‘Pelops’ island’. 

Ixion was the king of the Lapiths, another Greek-speaking people.  He tried to get Hera, Zeus’ wife, into bed.  Zeus tricked him into having sex with a cloud that looked like Hera.  The first centaur was born from this union.[3]  Ixion’s punishment for this behavior was to be tied to an ever-spinning wheel of fire for eternity.[4]

Sisyphus was the king of Corinth.  He was what we would now call a sociopath.  He slept with the daughter of a guy who stole his cows as a form of revenge.  He raped his niece.  But what really got him in trouble with the gods was his disruption of nature.  His first offense was to tell a river god that his daughter, Aegina, was missing because Zeus had kidnapped her.[5]  Unamused, Zeus sent Thanatos, Death, to take Sisyphus away.  Sisyphus tricked Death and locked him up in his house.  With Death out of commission, the order of things was upset.  Wounded people kept walking, old people shriveled up and became cicadas, and there was no turnover at the title division of the DMV. Zeus sent Ares, the god of war, to release Death.  Ares released Death and Death led Sisyphus to the underworld.  Before he left, however, Sisyphus instructed his wife to not perform the requisite funeral services and to not put a coin under his tongue to pay his passage over the River Styx.  When he arrived in the underworld, he asked Queen Persephone for a three-day furlough, to put his affairs in order and to punish his wife for her neglect.  Once he got home, he did not return.  Like Willie Horton, he spent the rest of his days in gluttony, sloth and simony.

When Sisyphus eventually died of natural causes, Zeus sentenced him to push a boulder up a hill for eternity.  A meter and a half before the summit (never less than a meter, never more than two), Sisyphus would trip, the rock would slip from his grasp and roll down the hill, and Sisyphus would have to do it all over again.  He is still doing it now.

Myths do not disappear.  They just change form.  Many of the pagan gods re-emerged as saints in orthodox Christianity.  Poseidon became Saint Nicholas, patron saint of the sea.  Demeter became Panagia.  Sisyphus became a nebbishy big-firm lawyer who bought mobile home parks.  To atone for the sins of his Germanic ancestors, he is forced to spend the better part of a year building a case against a shameless resident who fleeces him and drives his manager crazy.  Just before Judgment Day, the judge decides to take a job that creates a conflict of interest for most of the cases in that section of the Underworld.  The boulder rolls back to the bottom of the hill, and he does it all over again.  Periodically, he reflects that eternity is a very long time – particularly near the end.

---

[1] Hildago v. New York State Office of Temporary and Disability Assistance, Index no. 453931/2021, Part 8 (December 14, 2022).

[2] Although ERAP promises the payment of three months’ prospective rent, and most applications take about three months, I have seen this honored mostly in the breach. 

[3] For modern echoes of the genealogy of the centaur race, see, e.g., Roth, Early Modern Ireland, Mohl Scraps and the Genealogy of the Modern Priesthood, 1999, Newark.

[4] Modern readers will comment that Zeus, who had no shame about cheating on his wife, had no standing to act like a jealous husband.  The story should be read in context.  It was written thousands of years ago, by Greeks.

[5] Id.  Aegina was the eponymous nymph of the island of the same name near Attica.  In modern times, Aegina has become the site of urban sprawl.  See here for real estate listings.