NY Judge Issues Guidance For Upcoming Eviction Cases

By Emma Whitford
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Law360 (May 26, 2020, 11:22 AM EDT) -- New York landlords can begin enforcing eviction warrants, launching nonpayment cases and seeking default judgments against certain tenants on June 20, according to newly released civil court directives that both landlord and tenant attorneys described as burdensome.

New York Civil Court Administrative Judge Anthony Cannataro on Friday issued three notices that provide some clarity as to how Gov. Andrew Cuomo's latest executive order regarding evictions during the coronavirus pandemic could play out.

Cuomo's order, which will be effective from late June through late August, prohibits nonpayment evictions against "someone that is eligible for unemployment insurance or benefits" or a residential or commercial tenant "otherwise facing financial hardship due to the COVID-19 pandemic."

Friday's directives outline how a landlord might go about determining this information, while raising new questions among attorneys.

A petitioner looking to enforce a residential or commercial eviction warrant awarded before March 20 must first file a motion to the court, according to one directive.

The motion must include an affidavit from a "person with knowledge of the facts" stating that a tenant isn't eligible for unemployment benefits or insurance or "otherwise facing financial hardship due to the COVID-19 pandemic."

A landlord looking to start a nonpayment case must include the same type of affidavit in their application to the court, a second directive states.

Tenants have 14 days to respond to a nonpayment proceeding before the landlord can apply for a default judgment.

A third directive from Judge Cannataro says that a landlord seeking a default must submit, along with their application, an affidavit stating the petitioner "has conducted an investigation to ascertain" whether the tenant qualifies for assistance or is facing COVID-19 hardship.

Some landlord attorneys said the new guidance is confusing and possibly even a deterrent.

"I don't know how one is to go about [it]," said Nativ Winiarsky, partner with Kucker Marino Winiarsky & Bittens LLP. "Should the landlord be sending out a questionnaire? If so, how encompassing can the questions be? Is the landlord allowed to ask for documents from the tenant to determine the veracity of any response?"

Luise Barrack of Rosenberg & Estis PC, head of the firm's litigation department, told Law360 that she doubts many landlords have this type of granular financial information about their tenants, and that the new guidance will "stymie [their] expectations and hopes."

"There may be instances where someone can fill out an affidavit because you may have a four-unit building and know your tenants, but I would suggest that most landlords don't have that knowledge and it's going to be a daunting proposition to put in a sworn statement," she said.

But tenant attorneys told Law360 that the new guidance confirmed their fears that eviction cases will flood the courts, and put the burden on tenants to defend themselves.

"This is the court expecting a flood of cases," said Paula Segal, a senior staff attorney at TakeRoot Justice.

"Landlord attorneys will figure out how to fulfill these requirements and leave it up to tenants to defend themselves either by opposing a default judgement or challenging the veracity of an affidavit in trial," she added. "In both of those scenarios, the burden is on the tenant."

"The new directives give landlords an unlimited pass to demand confidential financial disclosures from tenants under threat of eviction," predicted Patrick Tyrrell, a staff attorney for Mobilization for Justice.

In a recent email to clients, the real estate law firm Borah Goldstein Altschuler Nahins & Goidel PC listed off information their attorneys believe landlords can request from tenants in anticipation of Cuomo's order taking effect on June 20.

"Correspondence from an employer, bank statements, pay stubs, proof of filing for or receipt of unemployment benefits are just some of the proof that should be submitted by a delinquent tenant upon request," it states.

The new guidance "definitely validated our interpretation of the executive order, because we had advised our clients we believed an investigation was going to be necessary," Borah Goldstein partner Jeffrey Seiden told Law360 Tuesday. "And now clearly we were correct in that viewpoint."

Friday's directives, like Cuomo's executive order, do not 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. Some attorneys believe such cases will proceed apace when the order takes effect. 

Last week, New York housing court began scheduling conferences in eviction proceedings that commenced before the pandemic, in an effort to lighten caseloads ahead of an expected torrent of cases. These conferences cannot result in an eviction, according to the Office of Court Administration. 

--Editing by Katherine Rautenberg.

For a reprint of this article, please contact reprints@law360.com.

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