CDC Eviction Rule Likely To Have Limited Reach In NYC

By Emma Whitford
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Law360 (September 14, 2020, 5:02 PM EDT) -- A new federal rule prohibiting certain residential evictions through the end of the year is likely to have limited impact on New York City renters and landlords even as it adds a new layer to already complex housing court protocols, lawyers say.

Thousands of eviction cases filed in the city since the coronavirus pandemic began are on indefinite hold and won't be resolved before the new year, outlasting the rule's window. As for cases that predate the pandemic, much will depend on how judges interpret the rule's numerous qualifications for relief on a case-by-case basis, in backlogged courts.

"For New York tenants, it is mostly a moot point. It's not long enough, period," said Susanna Blankley, coordinator of Right to Counsel NYC Coalition, which represents more than 25 public defender and tenant groups. "If you were sued after March 16, we don't expect you to have a court date in 2020."

If tenants with older cases think they might qualify for the rule, which the Centers for Disease Control and Prevention issued this month at the behest of President Donald Trump, lawyers are urging them to seek free legal advice using resources like 311, the city's help line.

Unlike New York's unqualified hold on evictions, set to expire Oct. 1 for cases predating the pandemic, the federal rule requires tenants to sign a declaration stating they meet certain requirements. Tenants must say they are experiencing substantial financial hardship, for example, and have tried to avail themselves of government assistance.

"We are basically telling folks they should not submit a declaration without getting legal advice first," said Marika Dias, attorney and director of the Safety Net Project at the Urban Justice Center in New York City. "For most people, the declaration makes admissions without the moratorium actually offering them much benefit right now."

On the landlord side, Mitchell Posilkin, general counsel for the Rent Stabilization Association, a landlord trade group, also told Law360 that "we tell people to talk to their own attorneys."

Whether to pursue an eviction during the CDC rule's window is "going to depend on where the case is in the pipeline, and the particular owner's risk tolerance," he added, noting the "very significant penalties" landlords could face for a violation, including steep fines and even jail time.

The declaration requirement inevitably limits the scope of the CDC rule, according to Legal Aid Society attorney Judith Goldiner.

Tenants "have to file something affirmative, and a lot of people just don't know about it," she said. "They are thinking [about] how they are going to feed their families and not thinking about this."

If a tenant does file a declaration, some landlord attorneys are taking a cautious approach, assuming that the paperwork stops a qualifying eviction case from proceeding at all.

"In looking at the definition of 'eviction' in the order, it includes taking any action to cause the removal of a tenant from a residential property," said Jeffrey Seiden, a partner with Borah Goldstein Altschuler Nahins & Goidel PC. "I believe this would include serving a rent demand, petition or proceeding with your already existing nonpayment case through the date the order expires."

But New York's Office of Court Administration has said it will not pause eviction proceedings in light of the CDC rule, instead letting individual judges consider its applicability on a case-by-case basis.

On a Sept. 3 call with housing attorneys, Civil Court Administrative Judge Anthony Cannataro said judges "are going to have to determine whether a declaration was required, whether it's sufficient, whether this is the type of case that the CDC rules are meant to apply to."

Since April, New York City housing courts have been chipping away at a backlog of 200,000 pre-pandemic cases, amid staffing shortages and the transition to virtual proceedings. Starting this week in the Bronx, judges will hear a subset of these cases in which warrants were awarded before the pandemic but have yet to be executed.

New York City landlords have filed roughly 1,250 motions to activate these warrants as of Sept. 11, according to a court spokesperson. Warrant hearings will begin in the other boroughs by Oct. 5.

"Those are folks who might have nothing much to lose by doing the declaration, and it would prevent their eviction for three months at least," said Dias, of the Urban Justice Center. Unrepresented tenants in these cases are going to be matched with attorneys who can help them consider this option, she noted.

As they grapple with the CDC's eviction rule, advocates for both tenants and landlords have expressed concern that it does not provide rent relief.

"All this really does is create outside noise," said Joseph Condon, general counsel for the Community Housing Improvement Program, a trade association for the owners of 400,000 rent-stabilized properties in New York City. "On Jan. 1, is the federal government going to fund vouchers to cover all of the arrears?"

Meanwhile, organizer Cea Weaver of the tenant group Housing Justice for All urged state legislators in a statement not to be "outflanked by a Republican administration in Washington."

The group is calling for the passage of pending state bills that would instate a blanket eviction moratorium beyond the new year and cancel rent and certain mortgage payments.

--Additonal reporting by Dave Simpson. Editing by Aaron Pelc.

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