By Emma Whitford

Law360 (May 6, 2021, 6:20 PM EDT) -- A group of small New York landlords and a major trade association are seeking to stop statewide eviction protections recently extended through August, claiming Thursday that legislation signed by Gov. Andrew Cuomo this week is unconstitutional.

The landlords joined the Rent Stabilization Association in a federal complaint against Lawrence Marks, the state's chief administrative judge, among others. In it, they argued that the COVID-19 Emergency Eviction and Foreclosure Prevention Act forces them to distribute materials to their tenants endorsing a law they disagree with, in violation of the First Amendment and state constitution. 

The suit also claims that a form tenants can fill out to pause their eviction case under the law is vague and violates landlord due process because it must be accepted at face value. In addition, the suit claims that limited access to housing court under the CEEFPA — which was enacted in December and was initially set to expire on May 1 — violates a First Amendment right to petition.

"The notion that tenants can insulate themselves indefinitely simply by submitting a vague, standardless and unchallengeable 'hardship declaration,' was problematic enough to begin with," the plaintiffs wrote Thursday. "Now, it is downright unconscionable."

The plaintiffs — including the RSA, which says it has 25,000 members, mostly New York City landlords — are seeking a preliminary injunction halting the law as well as a declaration of unconstitutionality, court records show.

Among the individual landlord plaintiffs, one is allegedly seeking to sell the single family home that he rents out. Others say they are trying to move into the rental units in question. These plaintiffs own between one co-op unit and six properties, respectively. 

Thursday's claims closely mirror those put forward by the same landlords in a federal case filed in February. That case was dismissed for lack of subject matter jurisdiction on April 14, when U.S. District Judge Joanna Seybert ruled that the sole defendant, Attorney General Letitia James, lacked a "required enforcement connection" to the law.

The case was initially before U.S. District Judge Sandra J. Feuerstein, who was struck and killed by a driver in a Florida hit-and-run last month.

Randy Mastro of Gibson Dunn & Crutcher LLP, plaintiffs' counsel in both cases, told Law360 on Thursday that the jurisdiction issue was a "red herring which delayed [addressing] constitutional merits."

This time around, in addition to Judge Marks, defendants include multiple county sheriffs and officials in New York City's Department of Investigation, which provides guidance to the city marshals who execute evictions. These defendants are "directly responsible for aspects of enforcement or nonenforcement" of the law, Mastro said. "So they're all clearly proper parties."

"The bigger picture is that this is government overreach, it's unconstitutional, and has been going on for over a year now," Mastro added.

Housing courts across New York have been either fully or partially closed since mid-March of 2020, thanks to a patchwork of court and gubernatorial directives and, more recently, state laws.

Lucian Chalfen, a spokesperson for the Office of Court Administration, told Law360 on Thursday that "we haven't officially been served."

Diane Struzzi, a spokesperson for the Department of Investigation, told Law360 that "DOI has not yet been served with the lawsuit, and when it is received DOI will review it."

Sheriffs of Duchess and Nassau Counties and New York City could not immediately be reached for comment.

The CEEFPA extender signed into law Tuesday maintains a status quo established in December, when the number and type of residential eviction cases that can proceed in housing court was substantially narrowed. It also extends temporary protections against commercial evictions, as well as certain foreclosures.

In order to pause or prevent an eviction filing under the CEEFPA, residential tenants must submit a form to their landlord or to the court attesting that they have experienced financial hardship during the pandemic or that moving would pose a serious health risk. There is an exception for tenants causing a serious and persistent nuisance.

New York Assemblyman Jeffrey Dinowitz, who co-sponsored the CEEFPA extension bill, called Thursday's lawsuit "ridiculous on its face," noting in a statement that more than $2 billion in forthcoming federal rent relief for New York state hinges on landlords working with their pandemic-affected tenants.

Plaintiffs' desire to move forward with evictions "frankly seems antithetical to the interests of landlords who want to get reimbursed for the rent they are owed," Dinowitz said. 

RSA President Joseph Strasburg described the CEEFPA as redundant, noting that tenants who apply for the federal rent relief will be protected from eviction while their applications are pending and for a year after their landlord accepts federal money on their behalf. 

"There already are comprehensive eviction protections in place for COVID hardship-impacted tenants," Strasburg said in a statement. 

New York's rent relief program is expected to launch later this month, though the state has yet to confirm a specific date.

The plaintiffs are represented by Randy M. Mastro and Akiva Shapiro of Gibson Dunn & Crutcher LLP.

Counsel information for the defendants was not immediately available.

The case is Chrysafis et al. v. Marks et al., case number 2:21-cv-02516, in the U.S. District Court for the Eastern District of New York.

--Editing by Rich Mills.

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