What Pandemic Law's End Could Mean For NY Housing Courts

By Emma Whitford
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Law360 (January 11, 2022, 5:29 PM EST) -- A New York law that has kept residential evictions largely at bay is poised to expire over the weekend, and attorneys are strategizing on how to best advise tenants and landlords assuming stays on thousands of pending cases lift in a matter of days.

At numerous points since the coronavirus pandemic struck in March 2020, lawmakers have intervened to extend eviction safeguards, most recently in September. But Gov. Kathy Hochul indicated on Tuesday that the COVID-19 Emergency Eviction and Foreclosure Prevention Act, or CEEFPA, will expire Jan. 15.

Tenants rally against winter evictions in Brooklyn on Saturday. A law that has curtailed most evictions in New York is poised to expire this weekend. (Emma Whitford | Law360)

"In my early days as governor … we talked about giving people a little more breathing room on a short-term basis," Hochul told reporters. "What we want to do is let people know that's concluding very shortly."

She added: "We are very cognizant of the anxiety surrounding this, but it has been foreseen for a long time."

For tenants, there is a feeling of trepidation. Delene Ahye, a member of the Crown Heights Tenant Union, attended a protest against winter evictions outside of Brooklyn Housing Court on Saturday. Her husband is out of work, and she managed to stay her own eviction case last year.

"It gave me some kind of relief because at least it's on hold for now," she told Law360. "But after the 15th, then what?"

Landlords, meanwhile, are tentatively hopeful that cases will begin to move toward resolution — whether that means rent debt repaid or an apartment repossessed.

"It's not like the expiration is a panacea," said Andrew Wagner, a partner with Herrick Feinstein LLP. "It's just going to provide landlords with potentially a light at the end of the tunnel."

Here, Law360 breaks down how cases may proceed in the coming weeks and months, depending on factors like access to an attorney, case posture, rental assistance and the outcome of a tenant-led campaign to prevent evictions without good cause across the state.

Courthouse 'Thaw' Coming

"I think housing court to a large extent has been in a deep freeze, and I'm hoping for a significant thaw," said Sherwin Belkin, a founding partner of Belkin Burden Goldman LLP.

Since January of last year, renters across New York have had a powerful tool to pause or prevent an eviction case from proceeding against them — they could submit a simple form attesting that they experienced financial hardship during the pandemic, or that moving would pose a serious health risk.

"So many cases are stayed with hardships," said Lisa Faham-Selzer of Kucker Marino Winiarsky & Bittens LLP, a landlord attorney. "Notice of appearance, hardship declaration: boom, boom."

That does not mean courthouse functions have been fully halted. Residential evictions ticked up in 2021, though still a blip compared to pre-pandemic levels. In New York City, where the majority of cases originate, marshals have reported 168 court-mandated evictions since January 2021, compared to more than 15,800 in 2019.

And though landlords have filed fewer cases during the pandemic than prior, there are currently more than 227,000 active eviction cases across New York, according to a state court data tracker maintained by New York's Right to Counsel Coalition.

Still, Faham-Selzer anticipates eviction filings will increase in the coming weeks. "I think a lot of people are waiting, thinking in January they'd do without the hardship," she said.

What this means for litigants will vary. In New York City, for example, most appearances are being conducted virtually, and low-income tenants are matched with free legal representation. Most tenants with legal counsel avoid eviction — more than 80%, according to a 2018 report from the city's Office of Civil Justice.

In contrast, outside the city, tenant-side lawyers can be hard to come by. A campaign to expand the right to counsel got a boost last week when Hochul highlighted the issue as one of several policy priorities, though a comprehensive program would take time to establish.

Another major question is how courts will manage foot traffic, especially in light of the contagious omicron variant of COVID-19. New York courts spokesperson Lucian Chalfen told Law360 not to expect a statewide directive on this issue, as "each county [and] district will have different concerns and numbers of cases."

"I haven't seen anything from the courts about capacity in courtrooms or measures like that," said Marcie Kobak, director of litigation for Legal Services of the Hudson Valley. "So I think there are going to be people who [have] heard the news that the moratorium is expiring, and [are] going to court because they are concerned or served with a warrant."

The expiration of CEEFPA will also put the onus back on tenants to contact the court shortly after they are sued for nonpayment in order to avoid a default judgment, Chalfen said. Once a default is issued, the tenant must take proactive steps to have their case reopened in order to avoid eviction.

"For tenants who fail to communicate and don't come to court, this will help expedite the process for removing them from the property," said Jaime Cain of Lipsitz Green Scime Cambria LLP, who represents landlords in Buffalo.

Case Type is Key

Most often when landlords file an eviction case, it is to recoup missed rent. Nearly 90% of active eviction cases in New York are nonpayment cases, according to an analysis of court data by JustFix, a pro-tenant technology nonprofit.

"There are more tools to resolve the underlying issue in a nonpay, which is money," said Sateesh Nori, attorney in charge of Legal Aid's Queens Housing Office. "It may require more funding, but it's possible." 

Renters facing nonpayment cases can also avail themselves of the Tenant Safe Harbor Act, a state law passed in 2020 that prohibits eviction for rent missed during the coronavirus pandemic — though landlords can still secure a money judgment.

But for landlords set on removing a tenant from their property by way of a so-called holdover case, the expiration of CEEFPA could be a major boon — particularly outside New York City, where a lease renewal is seldom guaranteed. The tenant may have overstayed their lease or never had one to begin with.

"You [currently] have a lot of landlords not getting the relief they need, and that relief is not necessarily money," Faham-Selzer said.

Eager to minimize holdover evictions going forward, tenant advocates in New York are rallying around a state bill sponsored by Sen. Julia Salazar, a Brooklyn Democrat, that would bar most landlords from evicting tenants without good cause — such as missed rent or nuisance behavior — effectively giving more people the right to stay in their apartment from one year to the next. 

Tenants across an estimated 1.6 million households would also gain recourse to challenge rent increases above a certain threshold, according to an analysis from the Community Service Society.

"It would prevent a lot of … unreasonable rent increases that amount to de facto evictions at a time when a lot of people have not recovered financially from the impacts of the pandemic," Salazar told Law360.

The fate of the legislation — which has drawn strong opposition from landlords — is unknown, though the statewide tenant coalition Housing Justice for All is partway through a week of actions in the state capital, demanding its passage.

Rent Aid in Flux

New York began administering one of the country's largest programs to cover pandemic rent arrears in June, with more than $2 billion at its disposal. So far, roughly 100,000 payments have been administered to landlords, who must in turn agree not to evict or raise rent for a year — assuming the tenant doesn't fall behind again.

Melissa G., a Bronx renter and mother of two, recently learned that her application had been approved. A finance researcher and assistant, she was laid off during the pandemic and fell behind on rent, but has since found temporary work.

"It was a huge weight lifted off of my shoulders," she told Law360, requesting to withhold her last name for privacy reasons. "Having to get laid off when COVID started and not being able to get any jobs was really hard."

But the Emergency Rental Assistance Program, or ERAP, is now facing a funding shortfall in the hundreds of millions, with tens of thousands of applications still pending.

Valentina Gojcaj, a Bronx property manager and owner, said that while ERAP was helpful, the majority of her tenants have fallen behind on rent again, and she needs to get back to housing court to pursue additional funding.

"Generally speaking, we were able to get a significant amount through the ERAP program paid out, but that was only for up to 15 months," Gojcaj said.

While landlords may want to pursue relief through the courts, tenants who have yet to apply for ERAP are being advised to do so in order to benefit from a stay in any eviction case while their application is pending. The program's portal closed to most applicants in November, but a state judge has ordered it to reopen this week.

"It puts a stay on your case so you can explore other means of paying your rent," said Patrick Tyrrell, a staff attorney for Mobilization for Justice. "Or maybe more breathing room if you're employed and can save up more money and not deal with an active case at the same time."

Whether ERAP receives an influx of additional funds remains to be seen. The state's first request for nearly $1 billion in additional federal funding turned up just $27 million, putting pressure on state lawmakers to potentially chip in from their own coffers.

The U.S. Department of the Treasury has said more funds could free up down the road, and on Tuesday, Hochul said she would be sending a letter to the department seeking more assistance. 

"What I don't want to do is create false expectations," she said. "We can reopen a portal, people can sign up, but that also hinges on the federal government doing what we want them to do, which is allocate more money."

--Editing by Philip Shea and Kelly Duncan.

Correction: An earlier version of this story incorrectly implied that New York's good cause eviction legislation would expand the right to a lease renewal. The error has been corrected. 

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