NYC Says Courts Must Okay Some Pre-Virus Eviction Notices

By Emma Whitford
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Law360 (June 17, 2020, 2:36 PM EDT) -- The New York City Bureau of Marshals this week issued guidance for the re-service of thousands of eviction notices issued before coronavirus court closures in mid-March, laying out a time-intensive requirement for court approval to the chagrin of landlord attorneys.

The June 15 letter from Bureau Director Caroline Tang-Alejandro states that a notice cannot be re-served "until the petitioner has received leave of court to enforce the warrant of eviction" — a process landlord attorneys say could make it more difficult for them to evict tenants whose cases predate the pandemic.

But the new guidance may only apply to nonpayment cases, the Department of Investigation — which oversees the marshal's bureau — told Law360 on Wednesday.

It may not apply to 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.

The walk-back came after mounting confusion among attorneys. While the letter states all eviction notices cannot be re-served without court leave, lawyers noted that Tang-Alejandro referenced a recent court directive, DRP 211, which only applies to nonpayment cases.

"DOI's guidance should be construed consistent with the scope of DRP 211," the agency told Law360.

"DOI is awaiting further direction from the court regarding holdovers and will update DOI's guidance if appropriate," the agency added.

Under the court's guidance, petitioners must submit an affidavit stating that they've made a "good-faith effort" to determine if a tenant in a nonpayment case is eligible for unemployment insurance or benefits, or that they are facing financial hardship because of COVID-19.

A warrant can only be enforced against a tenant who doesn't fall into one of those categories.

Nativ Winiarsky, partner with Kucker Marino Winiarsky & Bittens LLP, predicted this process will likely take months "given the severe backlog expected." 

Two-thirds of his firm's outstanding notices are for nonpayment cases, Winiarsky said. One-third are for holdovers.

According to DOI, New York City marshals issued 2,688 notices of eviction prior to March 16 in which the actual eviction — the changing of the locks — is still pending. The figure was not broken down by nonpayment and holdover cases.

Monday's letter also states that, due to New York's ongoing eviction moratorium, all eviction notices issued prior to March 16 are now stale. This means that 30 days have elapsed since the earliest eviction date specified on the notice.

Stale notices must be re-served, triggering a new buffer of at least 14 business days before a marshal can actually execute an eviction. Within that buffer, tenants can seek to delay, perhaps requesting time from the court to acquire a lawyer.

Re-service does not typically require court permission, though. Tenant attorneys are preparing for a situation in which holdover notices are re-issued quickly.

"In terms of triage right now, we're prioritizing all holdover cases with stale notices of eviction because under [DRP 211] tenants don't fall in a protected category," said Patrick Tyrrell of Mobilization for Justice.

Adding a final wrinkle to attorneys' plans, a spokesperson for DOI confirmed Monday that marshals will not resume business until Chief Administrative Judge Lawrence K. Marks lifts a March 16 order stating that "all eviction proceedings and pending eviction orders shall be suspended statewide ... until further notice."

Housing Court judges have said that Marks could issue an update this week, since Gov. Andrew Cuomo's blanket eviction moratorium is set to lift on Saturday.

Despite Marks' lingering order, New York City housing court is preparing to accept new eviction cases starting Monday. Judges said this week that they expect new cases to move slowly, with generous adjournments.

"We are currently in the process of formulating what will be addressed in Housing Court starting on June 22. We will have some guidance before the end of the week," courts spokesperson Lucian Chalfen told Law360 on Wednesday.

--Editing by Rebecca Flanagan.

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