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Law360 (February 24, 2021, 11:27 PM EST) -- New York state's most recent pandemic-related eviction ban is unconstitutional because it tramples landlords' rights to due process and free speech while handing too much power to the judiciary, five landlords said in a federal court suit filed Wednesday.
The landlords asked the court to bar the state from enforcing Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, signed into law in December, arguing that this most recent form of the eviction stoppage pushes landlords to "the brink of financial and emotional disaster."
"In many cases, landlords are already approaching a full year of not being able to seek rental income from tenants who refuse to pay their obligations, and are consequently unable to offset their mortgage payments and property taxes," they said. "With this latest — and most severe — iteration, many property owners may not be able to pay their mortgages or otherwise meet their financial obligations, leading to the loss of their properties and other irreparable harms."
The eviction prevention act is stronger than a thicket of eviction defenses implemented by Gov. Andrew Cuomo and state and federal lawmakers that were available to certain New York tenants after a blanket hold on evictions lifted in early October.
Under the law, most eviction cases are on hold for 60 days, through Feb. 26. Tenants who fill out a so-called hardship declaration form in the interim, attesting that they are struggling financially or that moving would pose a serious health risk, can expect to have their cases stayed for a longer period, until May 1.
But on Wednesday, the landlords argued that by requiring property owners to distribute these forms to the tenants, the law violates their First Amendment rights by forcing their speech.
"Landlords are required to pay for the printing and mailing of these lists and forms, and to arrange and pay for the translation of the forms into certain languages spoken by their tenants," the suit said. "In essence, the State is forcing property owners to speak in support of a government eviction moratorium program with which they disagree and to recommend specific legal organizations whose mission and advice is squarely adverse to landlords' interests."
Additionally, by depriving the landlords of the ability to file eviction petitions, the state is stepping on their right to free speech, the suit alleges.
Further, they argue, the law is vague, allowing for undefined hardship-based outs for tenants seeking to avoid evictions. This invites abuse and arbitrary enforcement, they said. It also fails to provide the landlords with ways to challenge the hardship claims of tenants, depriving them of due process, the suit says.
"In granting the chief administrative judge the unchecked power to unilaterally extend the eviction moratorium statewide, CEEFPA violates the delegation of power under the New York State Constitution," the suit alleges.
Representatives for the parties did not immediately respond to requests for comment Wednesday.
The landlords are represented by Randy M. Mastro and Akiva Shapiro of Gibson Dunn & Crutcher LLP.
Counsel for the state was not immediately known.
The case is Chrysafis et al v. James, case number 2:21-cv-00998, in the U.S. District Court for the Eastern District of New York.
--Editing by Emily Kokoll.
For a reprint of this article, please contact reprints@law360.com.
