Attys, Courts Set Scene For Phase 2 Of NY Anti-Eviction Law

By Emma Whitford
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Law360 (February 26, 2021, 5:27 PM EST) -- After two months of little or no action on most eviction cases across New York state — a stay period intended to keep renters out of court amid rising COVID-19 cases and plunging winter temperatures — court appearances are about to ramp back up. 

Starting Friday, civil courts in New York have permission to significantly increase the number and variety of eviction cases on their dockets, kicking off the second phase of a state anti-eviction law, which took effect on Dec. 28 and is effective through the end of April.

Tenants can still submit a special form stating that they are hurting financially or that moving would pose a serious health risk in order to pause or prevent their eviction case until after May 1. But advocates worry that many tenants are unaware of this additional protection and need support to avail themselves of it. 

Still, how quickly cases move as New York approaches a full year of suspended or modified court operations could vary widely across the state depending on factors such as case backlogs. Law360 spoke with court officials, attorneys and other experts to get a sense of which cases are likely to appear before a judge in the coming months, and what the parties might expect.

Pre-pandemic cases likely move first

In New York City, the Office of Court Administration says the first cases to be scheduled will be eviction cases filed before the pandemic, in which both the landlord and the tenant are already represented by a lawyer and the tenant has not submitted a hardship declaration form.

This means that tenants who have been sued for eviction since June 22, when the courts began accepting new cases, are unlikely to have a virtual court date right away. But courts spokesperson Lucian Chalfen said to expect some movement in April in pandemic-era cases alleging unpaid rent in which the tenant has not filed a hardship form.

"It would not be surprising to see a couple hundred cases per day conferenced citywide to start," Chalfen said. "When the [pandemic-era] cases begin, in April, they will start at 60 cases per day, citywide, and quickly increase from there."

The April dockets will also feature some pandemic-era holdover cases — alleging that a tenant has overstayed or violated a lease term — in which no hardship form has been filed. In such cases landlords must claim an "urgent need" to proceed, according to Chalfen, such as risk of mortgage foreclosure or bankruptcy.

For months, landlord attorneys in New York City have bemoaned delays in housing court as rent arrears pile up. The first pandemic-era evictions did not begin to trickle in until the fall.

"Landlords do not have access to justice in housing court right now," said Olga Someras, general counsel for the Rent Stabilization Association, a landlord trade group. She predicted that the backlog "is just going to grow" in March.

Yet some attorneys told Law360 that they plan to proceed with their cases to the fullest extent possible. "We are preparing to move forward on any cases that we haven't received a hardship declaration on next week," said Lisa Faham-Selzer, who represents landlords at Kucker Marino Winiarsky & Bittens LLP.

Outside New York City, backlogs and scheduling vary. In Albany, for example, the city court confirmed that roughly 120 cases without a submitted hardship declaration were scheduled for hearings on Feb. 26. Pre-pandemic cases will proceed first. 

Jaime Cain, partner with Boylan Code LLP in Rochester, New York, said she was urging her clients to avail themselves of the courts. She said she was unaware of a backlog of old cases in her region. Last fall, she said, "we had already started hearing [new cases], and they were pretty much calendaring them right away."

"We will of course make sure we give [tenants with hardship] the benefit of May 1, but I think the landlords that I represent are thinking that until the point that they get the hardship form they want to keep moving forward," Cain added.

Hardship forms still accepted

The 60-day stay period for most eviction cases expiring on Friday was intended to provide courts, advocates and legislators with time to raise awareness about the availability of two additional months of protection. Ideally, tenants would submit forms before March in order to avoid going to court at all until at least May.

But tenant groups expressed concern this month when it became clear that relatively few forms had been submitted, raising questions about the success of outreach efforts.

As of Wednesday, New York City courts had received 7,613 forms in pending cases. For context, more than 38,000 residential eviction cases have been filed in New York City since June.

Sateesh Nori, attorney in charge of Legal Aid's Queens housing office, stressed that tenants can still submit forms in March and April. New York City judges have been instructed to inquire about the form when tenants appear before them in the coming months, and give them a chance to avail themselves of its protections.

Landlords are also required by law to provide tenants who are sued before May 1 with a hardship form.

"You can file a hardship declaration all the way up to May 1 if you want to," Nori said. "[Today is] just the day upon which the automated stay necessitated by the legislation expires."

But outside New York City, advocates are concerned for the many tenants who do not have access to a lawyer to advise them. With more than 1,300 courts hearing eviction cases across the state, it's hard to be certain how judges will tackle cases in which tenants have yet to attest hardship.

"It's very, very hard in such a short timeframe, during a pandemic when we can't do mass, in-person canvassing, to reach tenants in the kind of capacity we need to reach them in to tell them about their rights," said Rebecca Garrard, housing campaign manager for Citizen Action of New York, based in Albany.

Special calendars continue

Eviction cases alleging that tenants have caused a "substantial safety hazard" to their neighbors or are "persistently and unreasonably" affecting the "use and enjoyment" of the property have been allowed to proceed since the Emergency Eviction and Foreclosure Prevention Act took effect in December.

In New York City, each borough has been scheduling pending cases that may fit this heightened nuisance standard for weeks. There have been 669 hearings to date, according to the courts. At these hearings, a tenant attorney is on standby to take on each case.

Yet no eviction warrants have been issued in New York City this year, the courts confirmed, an indication that these cases are not speeding along.

"In Queens it's been pretty slow," Nori of Legal Aid said. "We didn't know what to expect between December and now, and there haven't been all that many cases."

"Things did not move quickly," added Jeffrey Seiden of Borah Goldstein Altschuler Nahins & Goidel PC. "There was a lack of clarity in many instances as to what the court felt it could do or not do, especially if the tenant did not appear."

Tenant attorneys elsewhere in the state offered similar reports. "The nuisance stuff didn't really materialize," said Mark Muoio, program director of housing and consumer law at the Legal Aid Society of Rochester.

"The courts were really, really quiet in February, and most seem to have busy calendars in March," added Marcie Kobak, director of litigation for Legal Services of the Hudson Valley.

There was more activity in Albany, however, where four eviction warrants have been issued in heightened nuisance cases since Jan. 1.

Hearings galore

Shortly before the state's current anti-eviction law took effect, courts in New York City began issuing default judgments to tenants who had failed to contact the court within 10 days of being sued.

Defaults, which were suspended for most of 2020, are typically issued when a tenant fails to contact the court in a timely manner and can precipitate an eviction without the tenant having a chance to mount a defense.

But the current law, in place until May 1, requires a hearing or status conference before a default judgment can be entered, or before an eviction warrant that was issued before Dec. 28 can be executed.

According to Ellen Davidson of the Legal Aid Society, the current law was designed to give tenants in a wide range of circumstances a chance to attest to their pandemic-related hardship before a drastic step is taken in their case.

"That way the tenant will have the opportunity to bring forward all their defenses in front of a judge," Davidson explained. 

But tenants' success in these hearings could vary across the state, depending on the availability of legal representation. "Unfortunately I'm not optimistic outside New York City," Davidson said.

--Editing by Peter Rozovsky.

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