By Emma Whitford

Law360 (August 12, 2020, 3:44 PM EDT) -- Residential evictions will remain on hold in New York at least until Oct. 1 even as pre-pandemic proceedings begin to move forward, according to new guidance issued Wednesday by Chief Administrative Judge Lawrence K. Marks.

Judge Marks' latest memorandum, which the Office of Court Administration hinted at last week, also states that every residential eviction case commenced before March 17 must be conferenced in front of a judge before "any further action is taken."

Both residential and commercial eviction cases filed since June 22, when the courts began accepting new cases, remain suspended for the time being. 

Courts spokesperson Lucian Chalfen would not say Wednesday whether residential evictions will definitely start up in October. "Oct. 1 is a world away going by how the past five months have gone," he said. "We will see."

Chalfen went on to describe Wednesday's guidance as "part of our paced, deliberative and measured efforts as we continue to normalize court operations and work through case backlogs."

"Currently there are 200,000 pending housing cases, and we need the ability to manage and start to adjudicate them with the expectation of post-March 17 cases potentially being overwhelming," he added.

Prior to Wednesday's announcement, only a small subset of pre-pandemic trials had started back up, in Brooklyn and Staten Island. 

Going forward, housing court proceedings will be conducted virtually whenever the court deems it appropriate for health, safety or convenience, according to Wednesday's memo.  

Among the pending cases that must be conferenced before they can proceed are more than 14,000 residential eviction cases in New York City, in which a warrant was issued prior to the pandemic.

Tenant attorneys recently singled out these households as being particularly vulnerable whenever evictions resume.

The new conference requirement could add a key layer of protection, according to Sateesh Nori, attorney in charge of the Legal Aid Society's Queens Housing Office. 

"This adds an extra step which says you have to hold a conference with the judge and the judge can take any appropriate action," he said. "That's very broad. That's a big deal."

These mandatory "status or settlement" conferences, which are not required in commercial eviction cases, should address "COVID-19 concerns," according to Judge Marks. Unrepresented tenants must be referred to legal service providers.

Landlord attorney Nativ Winiarsky, partner with Kucker Marino Winiarsky & Bittens LLP, expressed initial frustration with Wednesday's guidance, saying it "continues to demonstrate that landlords are stymied at every turn."

But Mitchell Posilkin, general counsel for the Rent Stabilization Association, a landlord trade group, called Judge Marks' memo a step in the right direction. 

"This is just another in a continuing series of steps that [the court] really has to take in order to ensure that this part of the justice system works," Posilkin told Law360. "Housing court just cannot put their hands up and say we're just going to sit idly by until this pandemic is over. They need to help the litigants resolve these cases." 

Also on Wednesday, New York City Civil Administrative Judge Anthony Cannataro issued a directive specific to cases commenced in the city.

The directive, titled DRP-213, states that residential tenants cannot lose an eviction case simply by failing to respond to papers filed against them during the pandemic. 

However, as courts begin to work through the thousands of cases that predate the pandemic, DRP-213 creates new sanctions for any party that fails to appear at a case conference or trial, either virtual or in-person.

"I definitely think it is good that the court has unequivocally and clearly suspended all [residential] evictions through Oct. 1 at the very least," said Marika Dias, managing director of the Safety Net Project at the Urban Justice Center. "That is definitely a positive development and gives tenants more clarity."

At the same time, she added, Judge Cannataro's directive signals that, when it comes to pre-pandemic matters, "the court is really laying down the law and demanding that people be present for virtual or in-person conferences." 

"That's the piece that I think could be particularly bad for pro se tenants," Dias added. "If they don't attend for the case conference, they could end up with a default judgment." 

Esteban Girón, an organizer with the Crown Heights Tenant Union, said Wednesday that he will continue to advocate for state bills that would reinstate a blanket eviction moratorium and cancel rent and mortgage payments for months beyond New York's ongoing state of emergency.

"This doesn't change our focus in terms of legislation," he said. "I think if anything it gives us a little more time and space to advocate for cancellation of rent."

Wednesday's notice demonstrates the state court system's power, according to Dias. Even though the courts have recently tied their eviction guidance to an executive order from Gov. Andrew Cuomo that comes up for renewal each month, they do not have to.

"It's very clear that the steps that are taken by the governor aren't what's suspending evictions," she said. "It's actually the actions the court has taken that are having that impact."

--Editing by Jack Karp.

Update: This story has been updated with comment from the Rent Stabilization Association. 

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