Landlord seeks to evict elderly ‘COVID refugees’ from rent-stabilized Hell’s Kitchen home of 43 years

A couple stranded in Ecuador at the peak of the COVID pandemic could soon lose the rent-stabilized Hell’s Kitchen apartment they’ve called home for 43 years because the landlord says they were away for too long.

The new owner of the West 47th Street co-op apartment where Hugo Santana, 70, and his wife Gloria, 80, have lived since 1980 claims their absence violates the terms of their rent-stabilized lease and is grounds for eviction from their three-bedroom apartment, for which they pay $897.44 a month, according to court records.

No judge has yet ruled on residency challenges against so-called “COVID refugees,” but housing attorneys argue that an eviction could set a chilling precedent. Rent stabilization laws permit tenants to spend long stretches away from their apartments, so long as they have valid reasons, like caring for a sick family member.

The Santanas were gone for 13 months as a result of the "impossibility and impracticality" of traveling during a global pandemic, they say in court papers.

Santana said he‘s lived on the same block since moving to New York City from Ecuador five decades ago, holding on as the neighborhood around him surged in popularity and price, declining buy-out offers from a previous landlord, and fixing much of the apartment himself. The family’s combined annual income is about $33,000.

The couple raised four children in the home, marking a wall near the living room to track the heights of their 13 grandchildren through the years. The back bedroom that his granddaughters share is decorated with stickers, posters and mathematics tables.

In an interview last week, Santana told Gothamist that the eviction proceedings blindsided him. He said he still doesn’t quite understand how he and his wife could be at risk of losing their home after paying rent on time for more than four decades.

“It’s the first thing, the most important thing: Rent and food,” Santana said in Spanish.

The new owner, a limited liability company, could stand to make a massive profit by ousting the family, deregulating the unit and jacking up the rent to market rate in a neighborhood where the median monthly price for a similar apartment is about $6,000 — over six times what the Santanas pay now.

“It’s like a hurricane hitting us and taking our home,” Santana said. “We have to continue fighting to stay in New York.”

Travel plans canceled

The couple’s saga started in January 2020, when they traveled to their native country days after Santana’s mother died. They had booked tickets to return to New York in the spring, travel documents shared with Gothamist show.

Within a matter of weeks, a deadly new virus was spreading across the globe. Countries enacted curfews, issued lockdowns, shuttered businesses and banned travel to stymie the spread of COVID-19.

In New York City, scenes such as growing lines of people outside of emergency rooms, doctors and nurses wearing garbage bags as scrubs amid shortages, and refrigerated trucks serving as makeshift morgues outside of hospitals made global news as deaths climbed into the thousands.

The Santanas’ April return flight to New York was canceled indefinitely.

The couple, who both have diabetes that makes them more vulnerable to serious complications from COVID, stayed out of the country for 13 months at the advice of doctors, as different variants ebbed and flowed before vaccinations became widely available. Santana also has hypertension and underwent gallbladder surgery while in Ecuador, his medical records show.

The Santanas said they made their way back home in February 2021 and got their COVID vaccines.

In December 2021, they decided to return to Ecuador for a few months and were still away in February 2022 when the new owner served them with a notice informing them their lease would not be renewed after it expired in May of that year. Santana’s son was staying at the apartment but did not open the mail, their attorney Judith Killen said.

The landlord submitted court documents showing they mailed the paperwork to Ecuador, but Santana said he did not receive it. They returned to New York in April 2022, and two months later their landlord began the eviction proceedings in Manhattan Housing Court.

‘We call them COVID refugees’

Tenant attorneys say their case is part of a subset of COVID-related eviction filings, where landlords are trying to remove rent-stabilized residents who temporarily left New York City during the pandemic and no longer used their apartment as their “primary residence” — a violation of the rent stabilization rules.

“We call them COVID refugees,” said Samuel Himmelstein, a veteran tenant lawyer frequently consulted by other attorneys. “Very often these were older people and/or people with health conditions [who] had reason to be nervous.”

Himmelstein’s law partner William Gribben estimated there are at least dozens of such cases. He said he has six “COVID refugee” cases, including an eviction filed against a woman in a rent-stabilized co-op unit on the Upper West Side who spent the early days of the pandemic upstate.

Residency challenges were far more common before 2019, when lawmakers strengthened tenant protection laws preventing owners of rent-stabilized units from hiking rents or deregulating empty apartments in most cases, he said. The exceptions are condos and co-ops, where the landlord can lift the unit out of rent stabilization once the current tenants leave — the situation in which the Santanas find themselves.

The company “Oz on 47th Street LLC,” linked to the real estate firm James Development Corp., bought several of the apartments in the building in November 2020, records show. They have since put some on the market, hinting at more to come. A two-bedroom unit above the Santanas sold for about $585,000 in 2021.

Mark Fessel, a principal at James Development Corp. who signed the Santanas’ eviction filing, is described on the company’s website as being “exceptionally creative” when it comes to buying properties and turning a profit.

Fessel did not respond to an email and phone call seeking comment. The landlord’s attorney, David Skaller, said he does not comment on pending litigation.

So far, however, no judge has issued a ruling on a COVID-related absence, according to Himmelstein and four other housing attorneys interviewed for this story.

Jesse Levitsky, a lawyer with the group Mobilization For Justice, said he is representing a couple whose East 22nd Street landlord is trying to eject them from their apartment for spending the peak of the pandemic in California.

“Anyone litigating any of these cases is actively monitoring all the other ones to see where it’s going to go,” Levistky said. “It’s going to be extremely important for all the other ones.”

They may have to wait a while.

Non-primary residence cases are typically “very drawn out and intrusive” endeavors, said James Fishman, another tenant attorney fighting several eviction files stemming from pandemic absences. He said one of his clients is an older woman who spent months in Nassau County and is now facing eviction from her co-op unit, which can be legally deregulated.

Olga Someras, general counsel for the landlord trade group Rent Stabilization Association, which opposes rent regulation, said she thinks tenant attorneys are exaggerating the extent of the so-called “COVID refugee” cases.

“These cases are really not that common,” she said. “Bringing this type of case is really hard to prove in the end.”

But with a potential resale on the horizon, Santana’s new landlord is nevertheless trying.

The couple is countering the claim that they were away from the apartment for two years with reams of medical records, passport stamps, utility bills and vaccination cards showing they spent nearly a year in New York City after returning from Ecuador.

Santana is expected to return to Manhattan Housing Court next week.

In the meantime, he said, he and his family are “in limbo” and afraid of what comes next.

“When I come home, I feel the depression of not knowing what’s going to happen,” he said. “They take someone out of the apartment because they have money. It’s nothing more than that.”