NY Courts Update Messaging For Return To Eviction Defaults

By Emma Whitford
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Law360 (November 20, 2020, 4:17 PM EST) -- New York's Office of Court Administration has announced plans to update its messaging to tenants facing eviction as a pandemic-related pause on default judgments lifts for many renters across the state.

In a memorandum and accompanying order dated Nov. 17, Chief Administrative Judge Lawrence K. Marks announced that going forward, landlords must send a notice to each tenant they sue stating that the renter "might be entitled by law to special defenses and protections related to evictions."

The notice, included as an exhibit to Judge Marks' memo, includes a link for eviction-specific information on the court's website, and, for New York City tenants, the phone number of the Mayor's Office to Protect Tenants.

It must be "printed on colored paper, to enhance ... distinctiveness and effectiveness," Judge Marks wrote.

The judge's memo also references a recent executive order from Gov. Andrew Cuomo that created a 60-day default buffer for thousands of New York City tenants who were sued for nonpayment of rent between late June and Nov. 3.

Cuomo signed the order after New York City tenant attorneys warned that tenants would be caught off-guard when the pandemic-related pause on default judgments lifted, particularly because a prior notice to tenants said they "might be entitled ... to take additional days or weeks to file an answer."

Tenants covered by Cuomo's order will have until Jan. 2 to "answer," or contact the court to schedule a hearing in order to avoid a default, according to Judge Marks. But for all tenants sued for nonpayment of rent from Nov. 3 forward, the standard 10-day window to answer applies, court spokesperson Lucian Chalfen confirmed.

Chalfen had previously said interpretation of Cuomo's order would be left up to individual judges.

Once a default is issued, the tenant must take proactive steps to have their case reopened in order to avoid eviction. No defaults have yet been issued in new nonpayment cases, according to the court. 

Outside of New York City, tenants typically receive a court date along with their first mailed notice that they are being sued, so the onus is not on them to contact the court in order to avoid defaulting.

In recent weeks, tenant attorneys have urged the courts to notify renters that defaults are resuming and explain how they can answer safely without having to travel to the courthouse, especially as COVID-19 cases rise in the state.

The websites listed on the new, colorful notices include information on how to answer by phone and state that "it is important to file an answer as soon as possible to avoid being held in default." 

"We are in the midst of sending out approximately 40,000 letters to respondents in nonpayment cases who have not answered their petitions providing them with information about alternatives to answering in person, among other things," Chalfen added Wednesday. "The first batch of several thousand letters went out yesterday."

"This is what we asked them to do," Ellen Davidson, a staff attorney with the Legal Aid Society in New York City, told Law360, noting that she would like to see the letter in order to assess it.

Landlord attorneys told Law360 that the resumption of standard default deadlines is promising on paper but that they still doubt cases will proceed at anything close to a pre-pandemic pace.

"These recent orders are encouraging in the respect of the court eventually returning to a more normal practice, but even if all restrictions were immediately lifted, there is still a process these cases have to go through and that will take time," said Jeffrey Seiden of Borah Goldstein Altschuler Nahins & Goidel PC.

In another corner of housing court, default judgments are beginning to trickle in.

As a pandemic precaution, New York City housing court mandated special hearings before any landlord can execute an eviction that was granted before the pandemic but could not be executed because of Gov. Cuomo's eviction moratorium. 

The hearings have already successfully matched some tenants with free lawyers. Each respondent gets two chances to appear before they are deemed in default, paving the way for the landlord to execute the warrant.

The court has been sending notices to tenants who miss their first hearing, informing them that a second absence will result in a default, according to Bronx Housing Court Administrative Judge Miriam Breier.

As of Nov. 18, according to the Office of Court Administration, 21 New York City tenants have defaulted out of 1,689 calendared hearings — roughly 1%. The breakdown is 16 defaults in the Bronx and five in Staten Island.

"Although relatively low right now, this is still the court authorizing evictions to proceed during a pandemic," said Patrick Tyrrell, a staff attorney at Mobilization for Justice. "We have confirmed marshals are serving eviction notices in NYC and upstate. So warrants aren't just pieces of paper in an otherwise delayed process — they will lead to evictions."

--Editing by Gemma Horowitz.

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

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