Chief Judge Lifts Suspension of Eviction Cases

On Oct. 9, New York State Chief Administrative Judge Lawrence K. Marks issued a memorandum revising the procedure for addressing residential eviction proceedings. “All residential eviction matters—nonpayment and holdover, without regard to the date of commencement—may resume statewide, with certain important caveats,” the memo states.

This has lifted a months-long suspension of cases filed since June. As a result of the judge’s order and accompanying memo, evictions without regard to the date of the commencement have been allowed to resume since Oct. 12.

The important caveats include a number of eviction defenses such as a partial eviction moratorium issued by the Centers for Disease Control and Prevention through December, and protections instituted by the state Legislature and Governor Cuomo that can prevent evictions for unpaid rent so long as a tenant can prove he or she has experienced financial hardship. The memo puts the burden on tenants to assert defenses.

Case backlog will determine how soon a case can be heard before a judge. Judge Marks said that residential evictions—including those for nonpayment of rent and for breaking lease terms—can go forward, but the proceedings are expected to take longer than usual.

No Default Judgments Until Nov. 3

According to Marks’ guidance, default judgments could resume Nov. 3, which means that an eviction could proceed if a tenant failed to appear in court. Tenants had been protected from default for failure to answer a nonpayment case filed against them. But that protection could fall away Nov. 3, Judge Marks said, with the expiration of an executive order that has suspended procedural deadlines.

Proceedings continue to be governed by the suspension of “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as described by the procedural laws of the state,” set forth in Gov. Cuomo’s executive orders. “So long as this suspension of time limits continues, no default judgment may be entered upon the failure of a respondent to answer a petition in an eviction matter,” says Marks.

Safety Considerations

The proceedings will take much longer than normal, the administrative order reads, because of measures to ensure safety in the normally crowded Housing Court.

Once a matter has been filed and answered, the further hearing of an eviction proceeding remains subject to local court circumstances and health/safety assessments for courthouse use. The safety of judges, non-judicial personnel, and court visitors remains the paramount concern in all court operations. Given the ongoing need to restrict foot traffic in courthouses for reasons of health and safety, it’s likely the scheduling, hearing, and issuance of decisions in eviction matters will often require far lengthier time periods than anticipated in statutes and prevalent under pre-COVID conditions.

Pre-March 17 Residential Matters

The requirement of a status or settlement conference set forth in Judge Mark’s previous order issued in August (AO/160A/20) remains in effect for residential eviction matters commenced prior to March 17. This includes matters in which judgments and warrants of eviction have been issued and delivered to enforcement agents (but not yet executed). At the status or settlement conference, the court was ordered to review possible means of relief, COVID-19 concerns, and other matters related to the case. Post-March 16 eviction matters are to be handled in the normal course.

Alternative Dispute Resolution

While mediation of eviction matters can be a highly useful practice and is strongly encouraged, it may be inadvisable in cases where one party is represented by counsel and another (generally the tenant) is unrepresented, states Marks.

State Policy, State Law

The guidance memo also highlights a gray area with regard to New York State’s policy response to evictions. It originates from a discrepancy in terminology between a Cuomo administration executive order and the new law, the Tenant Safe Harbor Act, both of which limit evictions during the pandemic.

The legislation limits the “issuance” of eviction warrants, while Gov. Cuomo’s executive order limits their “execution or enforcement.” Although Cuomo’s order applied to “any residential tenant,” the legislation applied only to evictions for nonpayment. Resolving the difference will be up to judicial interpretation, Judge Mark’s order says.

CDC Order

The Centers for Disease Control order of Sept. 4, 2020, bars eviction of any “covered person” from residential property for nonpayment of rent through Dec. 31, 2020. The CDC order defines covered persons as tenants or residents who file a declaration with their landlord affirming that they meet specified income limits and other financial and COVID-related requirements. The order allows eviction for reasons other than nonpayment, including damaging the premises, threatening the health and safety of others, violating building codes, and the like.

Governor Extends COVID-Related Eviction Moratorium

Until Jan. 1, 2021

Chief Administrative Judge Marks’ memo was published shortly after Gov. Cuomo issued an order aiming to block many evictions through year’s end. The judge’s Oct. 12 order and accompanying memo state plainly that all eviction cases can now proceed, lifting a months-long suspension of cases filed since June. Despite the restrictions on evictions, the new guidance from Judge Marks’ will allow some evictions to proceed.

On Sept. 28, 2020, Gov. Cuomo announced that the statewide moratorium on COVID-19 related residential evictions will be extended through Jan. 1, 2021. The moratorium has been in effect since March 20 and has been extended multiple times. The governor’s executive order officially extends the state’s Tenant Safe Harbor Act, which prohibits tenants from being evicted due to COVID-related financial hardships and creates a defense for tenants to raise if proceedings were brought against them.

Gov. Cuomo stated, “As New York continues to fight the pandemic, we want to make sure New Yorkers who are still struggling financially will not be forced from their homes as a result of COVID. We are extending the protections of the Safe Harbor Act through January 1 because we want tenants to have fundamental stability in their lives as we recover from this crisis.”