Responses to the Pending Surge in New York Eviction Matters

By: Kenneth J. Falcon, Esq., and Stephen Rutman

In anticipation of an impending torrent of eviction matters in New York resulting from the COVID-19 pandemic and the hardships it has imposed on tenants and landlords, New York Courts and lawmakers have sought temporary solutions to forestall a potential housing crisis. To alleviate some of these burdens, Governor Andrew Cuomo signed a law to protect renters facing financial difficulty, and rescinded a related executive order preventing the initiation or enforcement of residential eviction action. Additionally, with a growing body of judicial action developing, the Chief Administrative Judge of New York Courts issued an administrative order detailing new protocols for residential and commercial eviction proceedings.

Legislative Approach

The “Tenant Safe Harbor Act,” which Governor Cuomo signed on June 30, 2020, prohibits courts from evicting eligible residential tenants for failure to pay rent. The new measure applies to unpaid rent accrued between March 7, 2020 through a presently undetermined end-date. Under the legislation, landlords can still seek a money judgment from tenants; however, they will be unable to obtain a warrant of eviction or judgment of possession against a residential tenant that has suffered a financial hardship for the non-payment of rent that accrues or becomes due during the COVID-19 covered period. Notably, the Act does not permanently waive unpaid rent. Instead, it offers tenants additional time in their homes free from penalty for nonpayment of rent.

The new law reinforces the eviction moratorium first enacted by the Governor in March, which temporarily prohibited landlords from evicting tenants affected by the pandemic.

While the Tenant Safe Harbor Act does not specify eligibility criteria, it instructs the court to evaluate certain factors in determining whether the tenant “suffered a financial hardship during the COVID-19 covered period,” including: the tenant’s income before and during the COVID-19 covered period; the tenant’s liquid assets; and the tenant’s eligibility for and receipt of assistance, such as cash assistance, or State or Federal benefits (presumably including unemployment benefits, or financial stimulus funds).

Executive Approach

Recognizing the passage of the Tenant Safe Harbor Act, on July 6, 2020, with the issuance of Executive Order 202.48, Governor Cuomo rescinded Executive Order 202.28, which “prohibited initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage.” However, Executive Order 202.28 was not rescinded as applied to a commercial tenant or commercial mortgagor. Thus, Executive Order 202.28, which was otherwise in effect until August 20, 2020, now only applies to commercial tenants, and not residential tenants.

The impact of Executive Order 202.48 is to again allow landlords to initiate residential eviction proceedings as soon as housing courts are open to accommodate such proceedings, which will likely happen on a county-by-county basis. Thereafter, a tenant would be able to raise COVID-related financial hardship (as available in the Tenant Safe Harbor Act) as a defense to such proceedings.

Judicial Approach

On June 18, 2020, Chief Administrative Judge Lawrence K. Marks issued a Memorandum on the Procedure for Addressing Residential and Commercial Eviction Proceedings. Judge Marks cited concerns about the potential public health consequences expected from a sudden surge in eviction matters—which ordinarily require in-court appearances—as well as ongoing restrictions on filing and prosecuting eviction matters at the state and federal levels as rationales for the order.

Pursuant to Article 7 of the Real Property Actions and Proceedings Law (RPAPL), the order requires litigants to file commencement documents in eviction proceedings with the court exclusively via the New York State Courts Electronic Filing System (NYSCEF) or via mail. Judge Marks noted that the court system is in the final stage of authorizing consensual electronic filing of New York City Housing Court matters, as part of NYSCEF, which would represent a “substantial enhancement” to the court’s e-filing capabilities.

Additionally, the order requires that petitions in commercial and residential eviction proceedings (for nonpayment of rent or other grounds) include two additional documents: (1) a form petitioner’s attorney affirmation stating that counsel has reviewed the relevant state and federal restrictions and qualifications on eviction proceedings and believes in good faith that the proceeding conforms to them, and (2) a form notice to respondent-tenants (in English and Spanish), informing tenants that they may be eligible for COVID-19-related extensions in responding to petitions, and instructing tenants on how to seek additional information.

Variations on these forms are available for cases involving self-representation and for proceedings inside or outside of New York City.

The order continued to direct that eviction hearings would be stayed until the state executive orders presently in force suspending the statutory timetable for prosecution are lifted. Judge Marks clarified, however, that eviction matters commenced on or before March 16, 2020 in which all parties are represented by counsel would be eligible for virtual settlement conferences.

Finally, the administrative order committed to issuing further directives on the processing of eviction cases either upon or before the expiration of the Governor’s executive orders suspending statutory timetables.

Additionally, Judges around the State, both at the State and Federal levels, have begun to weigh in and will continue to decide cases involving COVID-related evictions, including related laws and Executive Orders.

Another Perspective

Although these solutions have garnered praise for the temporary relief they provide tenants, these measures have also raised concerns for landlords about potential abuse of these new systems and procedures. While many tenants are truly suffering due to COVID-related hardships, others may view these recently enacted measures as an invitation to engage in ‘hard bargaining’ with their landlords, aware that there will be significant administrative barriers to litigating any disputes.

Conclusion

If you have any questions about the above, please contact Kenneth J. Falcon at kfalcon@frblaw.com or (212) 203 – 3255.

DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.