NY Gov. Extends Commercial Eviction Hold Through Oct. 20

By Emma Whitford
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Law360 (September 21, 2020, 4:39 PM EDT) -- Commercial evictions will remain on hold in New York City at least through Oct. 20, following an executive order by Gov. Andrew Cuomo extending emergency coronavirus protections statewide.

Cuomo on Friday issued Executive Order 202.64, extending a hold on certain commercial evictions initially announced in May, after many businesses were forced to close as a health precaution amid the coronavirus pandemic. While jurisdictional interpretations may vary, New York City commercial evictions remain suspended. 

This marks the second time Cuomo has extended the respite for commercial tenants that was set to expire on Sunday. The order also applies to commercial mortgages.

"Over the weekend I signed an executive order ... which extends the executive order that says the business cannot be evicted from a space because they can't pay the rent as a result of the pandemic," Cuomo said during a press briefing on Monday. "That executive order extends until Oct. 20." 

The New York state Office of Court Administration confirmed on Monday that eviction cases filed since March 17 remain subject to the ongoing suspension. If commercial evictions resume next month, businesses with pending cases that predate the pandemic will be most vulnerable in the short term.

Attorneys have said that Cuomo's commercial eviction ban only prevents landlords from suing or evicting certain tenants for the nonpayment of rent and does not apply to commercial tenants who have allegedly violated a lease term.

But New York City's Bureau of City Marshals has interpreted the order more broadly, directing marshals last month not to execute any commercial evictions in light of Cuomo's order. 

Diane Struzzi, spokesperson for the New York City Department of Investigation, which includes the Bureau of City Marshals, told Law360 Monday that the "DOI is guided by the court."

The state Office of Court Administration's spokesperson Lucian Chalfen said Monday that all commercial evictions will remain on hold in New York City through Oct. 20. 

Long frustrated by delays in civil court, some attorneys for commercial landlords have turned to the state Supreme Court, where they can seek possession or money judgments. Others are negotiating directly with their commercial tenants.

"It's a hopeful sign for commercial landlords that the extensions seem to be getting shorter and shorter," Ally Hack of Warshaw Burstein LLP told Law360 on Monday. "But at this point, unfortunately, many landlords have stopped counting on the landlord/tenant court to resolve differences with their tenants." 

"This is just kicking the can down the road as the rent is not forgiven and will only make things tougher for both landlords and tenants," said Nativ Winiarsky, partner with Kucker Marino Winiarsky & Bittens LLP. "I already have clients who are commercial landlords being forced to sell their buildings because they can't collect the rent. That is not helpful to anyone."

New York City small business advocates also expressed frustration Sunday night, saying the commercial eviction hold is, at best, a Band-Aid. A survey released on Monday by the NYC Hospitality Alliance found that 87% of bars, restaurants and nightlife businesses were not able to pay their full rent in August. 

"Most commercial tenants don't wait for a marshal to evict them," said Paula Segal, a senior staff attorney with TakeRoot Justice. "The simple fact of a case being filed could be enough for them to move."

Guy Yedwab, board president of the League of Independent Theater, a group of small theater venues, accused the governor of "playing chicken." 

"If Governor Cuomo wants to address this crisis rather than kicking the can down the road every 30 days, he should support one of the bills in front of the state legislature to forgive the rent, provide relief for landlords, and help everyone move on," Yedwab said.

A separate hold on residential evictions is set to expire Oct. 1.

--Editing by Nicole Bleier.

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

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