By Adam Leitman Bailey and Dov Treiman
The Adam Leitman Bailey, P.C. landlord-tenant attorneys have been navigating the constant flow of changing laws and Executive Orders under COVID19 to serve tenants with notices and bring tenants to court, getting landlords their rents in spite of the eviction moratoriums.
These moratoriums, in one form or another, have been at all levels of government, federal, state, and city and all three branches of government: executive, legislative, and judicial.
Here is an update on the state of the landlord tenant practice in New York State as of October 1, 2020.
The Federal moratorium has small New York impact. On September 2, 2020, the Centers for Disease Control issued a declaration banning evictions in residential buildings. It does not apply where there is equal or greater local government tenant protection. This moratorium expires on December 31, 2020, but as we shall see, for the most part, New York’s tenant protections are greater. The Federal ban only applies to eviction by reason of nonpayment of persons with an income of $99K per year or less. The burden is on the tenant to establish entitlement to the protection.
The State Legislature passed two major laws on this. Executive Law 29-a gives the governor the power to suspend laws for no longer than 30 days. However, Governor Cuomo has been using this power without the Legislature’s involvement to modify laws and to create brand new laws for longer than 30 days. At least one judge has ruled this illegal. The other is the “Tenant Safe Harbor Act” (L. 2020 Ch. 127) which was not enacted into the Consolidated Laws, making it difficult to find. This too is a law that Governor Cuomo amended on his own. Under this law, if a residential tenant has a financial hardship during COVID, and raises and proves it as a defense, there can be no eviction during the covered period which is now, by Executive Order, extended through December 31, 2020. This law only bars evictions. The landlord can still get a money judgment and pursue the tenants’ assets.
By Executive Order, the Governor directed, “There shall be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent … rented by someone … facing financial hardship due to the COVID-19 pandemic …” However, when the Tenant Safe Harbor Actpassed, the governor lifted the restrictions on residential evictions from that order. However, he has continued through December 31, 2020 the restrictions on commercial nonpayment proceedings and for residential proceedings, the restrictions found in the Tenant Safe Harbor Act. This means that you can proceed with evictions proceedings in either Housing Court or State Supreme Court, but in Housing Court your case will be adjourned into 2021 and in State Supreme Court, you can process the case, but cannot yet get an actual eviction until at least January 1, 2021.
The Chief Administrator of the Courts has suspended all landlord-tenant cases filed in the New York City Civil Court since the onset of the pandemic. No date has been given when these cases will ever be heard. Thus, New York City Civil Court is not realistically available for any new landlord-tenant cases.
Ejectment Actions, Replenishment Notices, Self Help Evictions
For residential cases, we have been serving rent demands. For commercial cases, we have looked to other provisions in the leases that avoid the Governor’s prohibition on nonpayment cases and have brought those, even though they are ultimately based on the tenant’s not paying rent. Chief amongst these have been provisions allowing a landlord to draw down security for nonpayment of rent and then demand the tenant replenish the security. This sets the landlord up for bringing a case.
All the cases we bring, we bring in State Supreme Court. These have included ordinary nonpayment proceedings that we have specially adapted, holdover proceedings we have specially adapted, and ejectment actions.
“Ejectment actions” sound unfamiliar to most landlords, but they are centuries old evictions proceedings and are familiar enough to Supreme Court judges that these judges do not look for ways to throw the case out, claiming that it should be brought in the Civil Court. In normal times, they are much slower than ordinary nonpayment proceedings, but in the current crisis, they are much faster and have been getting the case in front of a judge in a month, unlike the year’s delay likely in the Civil Court. These cases have, for the most part, brought the tenants to the table and made them realize that if they are going to stay in business at all, they are going to have to make some arrangements for paying their rent. Some few of these cases are still being litigated in the courts, although we are bringing new ones every week. If need be, we can speed them along with summary judgment motions since the tenants have no legal defenses to paying rent.
When the lease has specifically provided for it, we have successfully utilized peaceful self-help evictions.