NYC Judge Cites 'Drafting Issue' In Eviction Guidance

By Emma Whitford
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Law360 (May 28, 2020, 9:27 AM EDT) -- New York City landlords do not have the court's blessing to investigate their tenants' finances as a prerequisite for commencing a new eviction case, an administrative judge told dozens of attorneys, citing a "drafting issue" in newly published court directives.

Civil Court Administrative Judge Anthony Cannataro fielded questions from landlord and tenant attorneys over Zoom on Tuesday, pertaining to three "directives and procedures" notices published on the eve of Memorial Day weekend.

The so-called DRPs are Cannataro's effort to prepare for the June 20 implementation of Gov. Andrew Cuomo's latest executive order pertaining to evictions, which allows new cases against commercial and residential tenants unless they receive government assistance or are "otherwise facing financial hardship" due to COVID-19. A blanket eviction moratorium remains in effect until that date. 

The publication of the DRPs prompted confusion and consternation among some attorneys who represent both landlords and tenants.

"It was never my intention, or anyone's intention, to put landlords or anyone else thinking of commencing a nonpayment proceeding in the posture of having to do some sort of investigation, hire a private investigator, conduct — I don't know — computerized inquiries of people's financial status," Cannataro said.

Rather, he continued, landlords should attach a notice to any rent demand urging tenants to make a response that puts the landlord "on notice in some way about whether or not they need to initiate a proceeding."

A landlord can start a case if the tenant does not respond, courts spokesman Lucian Chalfen later clarified.

Throughout the hourlong call, Cannataro told attorneys that the court is in a fluid situation. Complicating matters further, legislation passed the state Senate and Assembly on Wednesday that is similar, but not identical, to Cuomo's executive order. It could make the DRPs "completely moot," according to Cannataro.

Sponsored by State Sen. Brad Hoylman and Assemblyman Jeffrey Dinowitz, S8192-B prohibits evicting tenants who can demonstrate that they experienced financial hardship during the COVID-19 pandemic between early March and the complete reopening of New York State. The court could still seek a money judgment against such a tenant. 

The bill would likely remain in effect longer than Cuomo's executive order, which is set to expire Aug. 20. Cuomo's office did not immediately comment. 

"To those who are very upset about what they saw in the DRPs … part of my response is just wait a day or two," Cannataro said Tuesday. "Because you know this could all change tomorrow."

But attorneys are still interpreting Cannataro's latest guidance on the DRPs. The real estate law firm Borah Goldstein Altschuler Nahins & Goidel PC has been advising clients to request information from tenants such as pay stubs and bank statements.

Partner Jeffrey Seiden told Law60 on Wednesday that this is appropriate, because it "does not seek anything more than what would be necessary to corroborate" a tenant's claims.

This is still "putting the burden on tenants to demonstrate affirmatively that they were impacted," Nakeeb Siddique, director of housing for the Brooklyn Neighborhood Office of the Legal Aid Society, told Law360. 

Neither the DRPs, nor S8192-B, address holdover proceedings, a broad category of eviction cases that can be brought against tenants who rent month-to-month, or who have allegedly violated a lease term.

"I don't know the status of holdovers, which is why I completely avoided it," Cannataro said Tuesday. "I think someone will try to commence a holdover some time after June 20, and it's probably going to be the subject of a motion to dismiss, and that's going to have to be resolved in that forum."

​​​​​​New York housing courts are anticipating a surge of eviction cases in the wake of the COVID-19 pandemic, Chief Administrative Judge Lawrence K. Marks recently acknowledged. 

--Editing by Rebecca Flanagan.

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