By Emma Whitford

Law360 (June 14, 2021, 4:17 PM EDT) -- A New York federal judge has denied a motion by a trade group and several small landlords to block enforcement of a state law preventing most pandemic-era residential evictions, finding that the plaintiffs' constitutional violation arguments are not likely to succeed.

U.S. District Judge Gary R. Brown issued the Friday order in favor of the defendant, New York Chief Administrative Judge Lawrence K. Marks, saying that state laws — like the COVID-19 Emergency Eviction and Foreclosure Prevention Act, or CEEFPA, at issue here — are not generally susceptible to due process claims.

While the "legislature's power is not without constitutional limitation," Judge Brown noted in the 26-page order, the length of the current anti-eviction law, considered in the context of the ongoing coronavirus pandemic, is not extreme enough to override the presumption that the law is constitutional.

The landlords and their co-plaintiff, the Rent Stabilization Association, took issue in their May 6 complaint with a recent extension through Aug. 31 of the CEEFPA, which was enacted in December. The law limits their ability to file or execute evictions in violation of constitutional due process rights, the landlords claimed.

But Judge Brown wrote Friday that this is not a situation where the court should be second-guessing lawmakers. 

"Although plaintiffs argue that the extension's implementation was less than ideal, this court neither can nor should second-guess such determinations," the order stated. "Courts are equipped with microscopes, while other branches of government have binoculars. Hence, broad public policy decisions are best left to those institutions."

Friday's decision denied the plaintiffs' motion for a preliminary injunction blocking enforcement of the CEEFPA, while also ruling in favor of Marks on the merits — a move Judge Brown said would speed along the case and "facilitate appellate review."

The plaintiffs do plan to appeal, counsel Randy Mastro of Gibson Dunn & Crutcher LLP told Law360. A letter submitted to the court Monday also states that they plan to seek an emergency injunction blocking enforcement of the CEEFPA pending appeal to the Second Circuit.

In a statement, Mastro noted Judge Brown's apparent sympathy for the small landlords, who, according to the order, have "satisfactorily demonstrated a risk of irreparable harm," in part because they cannot currently evict their tenants in order to occupy or sell their rental properties. 

"We are disappointed by this decision and intend to appeal it," Mastro said via email. "After all, the judge recognized the irreparable harm small property owners are suffering from this continuing eviction moratorium now in its 15th month."

A mix of executive orders, court administrative orders and state laws have either blocked or limited eviction proceedings across the state since March 2020. 

Lucian Chalfen, a spokesperson for Judge Marks and the state court system, declined to comment Monday, citing the pending nature of the case. 

Ellen Davidson of the Legal Aid Society helped represent two pro-tenant nonprofits — Housing Court Answers and Make the Road New York — that filed amicus briefs opposing the plaintiffs' request to block the CEEFPA.

"The decision really rests on separation of powers," Davidson told Law360. "When does a court get to sit as a super-legislature and look at the decisions the legislature made and decide whether those were correct or not?" 

The claims that faltered Friday closely mirror those put forward by the same landlords in another 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.

Mastro chose to target Judge Marks this time around, as well as multiple county sheriffs and officials in New York City's Department of Investigation, telling Law360 in May that these entities are responsible for enforcing the CEEFPA. But Judge Brown dismissed the case as to all of Marks' co-defendants on Friday for failure to state a claim.

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

Marks is represented by New York Attorney General Letitia James and Assistant Attorney General Lori L. Pack.

The amici are represented by Edward Josephson and Roland Nimis of Legal Services NYC and Judith Goldiner, Ellen Davidson and Amber Marshall of the Legal Aid Society.

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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