The landlord-tenant implications of New York’s new Covid Emergency Law

by

By Dov Treiman. Partner at Adam Leitman Bailey, P.C.

Introduction

            On December 28, 2020, the Governor signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020
(C19EPA),  made effective immediately, and designed to do
exactly what the title says: prevent evictions and foreclosures. In doing so,
it provides no relief to landlords and mortgagees, no way to force the property
to be income producing, no financial grants from the government, but only gives
them additional hurdles to overcome in their proceedings. This article is
limited to the evictionaspect.

Proceedings Affected

            Many
are the grounds and bases for eviction in New York State: most commonly
nonpayment of rent and violation of lease provisions and rent regulatory
provisions. However, the statute is so designed as to prevent all residential eviction proceedings
except on grounds of nuisance. The C19EPA has no effect on commercial eviction
proceedings. However, among the landlord-tenant proceedings, whose evictions
are prevented under the C19EPA, are eviction proceedings against former
building superintendents, mortgagors in foreclosure, contract vendors on
completed sales, contract vendees on aborted sales, squatters, judgment
debtors, unit owners in condos, shareholders in coops, etc. The nature of the
tenant does not matter. What matters is the nature of the occupancy. If it is
residential in nature, the act affects it and probably prevents effective
action for the Owner to recover the premises prior to May 1, 2021. There is no
reason to believe the Legislature will not extend the act even further.

If, for example, a building
superintendent has been fired during the pandemic, there is no way to evict
that person to free up the apartment for a new superintendent without going
through the delays C19EPA imposes (although one could interpret C19EPA as to
carve out an exception if the superintendent is sabotaging the building).

Stays

            All
proceedings, both new and pending, are stayed for at least sixty days, until
February 26, 2021 for pending proceedings, sixty days from filing for all cases
filed in January, 2021. The stays do not apply to nuisance cases. Even in
nuisance cases, however, before allowing an eviction, the court must hold a
hearing to determine if the occupant is still persisting in the improper
conduct.

Default Judgments

            Prior
to issuing or enforcing a default judgment, there must be an additional hearing
to determine the resident’s Covid situation. Default judgments from prior to
the passage of the act are vacated upon request, not needing the form of an
order to show cause and therefore requiring neither a reasonable excuse for
defaulting, nor a valid defense to the proceeding.

Hardship Declarations

            The
centerpiece of the C19EPA is the Hardship Declaration. C19EPA requires both the
Owner and the courts to furnish residents with blank form Hardship
Declarations.

            Under
the terms of C19EPA, residents can use the Hardship Declaration to describe
themselves as victims of COVID-19 caused hardship if due to Covid: they cannot
pay funds required under a lease (typically rent) due to loss of income; have
increased expenses in essential work or health care; have difficulty earning a
living because of child/disabled/elderly care; have difficulty moving; or have
significantly reduced income or increased expenses.

            Alternatively,
Covid hardship includes people for whom moving would pose a substantial health
risk.

            There
is no requirement for verification of any of these conditions, nor provision of
supporting documentation. While the form sets as a qualifying condition,
“significant loss of household income,” such definition allows qualification
for hardship treatment to a billionaire who is reduced to an income of mere
tens of millions and indeed gives no definition to “significant” at all.

            C19EPA
requires owners to attach blank Hardship Declaration Forms (in English and the
resident’s principal language) to all preliminary notices to eviction
proceedings.

            If
a tenant files a Hardship Declaration with an Owner, the Owner cannot bring an
eviction proceeding before May 1, 2021, regardless of the merits or validity of
the Hardship Declaration.

Languages

            The
act requires the Owner to know (or guess) the primary language of the occupant
and compels the landlord to accord the occupant an opportunity to fill out in
English or this non-English language the Hardship Declaration, regardless of
the occupant’s actual fluency in English. The State has undertaken providing
the Declaration in the eight languages most commonly used in New York City but
leaves it to owners to procure translations in more obscure languages. While
the form warns the occupant that the making of false statements in the form is
against the law, C19EPA does not set forth any laws that the occupant could be
breaking by making a false statement.

Initiating Eviction Proceedings

            Neither summary proceedings in Civil Court nor ejectment
actions in Supreme Court can be commenced without including with the filings an
affidavit setting forth the manner of service upon the resident of the blank
Hardship Declaration and a sworn statement that the Owner had not received a
filled out Hardship Declaration from the resident.

Effect of C19EPA

            C19EPA undoubtedly makes prosecuting any kind of
proceeding in Civil Court for eviction completely impractical until at least
May 1, 2021. While the C19EPA complicates ejectment actions in Supreme Court,
it is not as crippling in Supreme Court as it is in Civil Court.

            For Civil Court summary proceedings, a landlord has to
demonstrate under C19EPA “due diligence” to effect service of the papers by
placing them in the hand of the actual respondent. Unlike pre-Covid law, giving
the papers in hand to someone else who lives in the apartment is not good
enough until the process server has made at least three attempts to put the
papers in the actual tenant’s hands.

            C19EPA speaks broadly of “staying” proceedings, but that
is more meaningful in Civil Court where eviction proceedings are normally always on the calendar. There, a “stay”
means that the case is re-calendared to May 1, 2021 or some date thereafter the
court sets. Recent experience, even without C19EPA, tells us that these Civil
Court proceedings will not likely see any action at all prior to Labor Day and
indeed unlikely prior to New Years.

            Ejectment proceedings, however, are different. They spend
most of the time off the court’s
calendars. There, if a “stay” even means staying all pieces of the proceedings,
such as discovery proceedings like depositions, and motions, like motions for
summary judgment, at least the stay lifts on May 1, 2021 and no later. However,
we have no real clarity on how the courts will interpret staying ejectment
actions. Even prior to C19EPA, the Supreme Court has been imposing an unusually
large number of unasked for adjournments in the cases before it.

Interpreting the Law

            The
C19EPA is due to expire prior to any appellate court having a meaningful
opportunity to interpret the law or its effects. (Rarely do cases make it to
the appellate courts within six months from their start and this statute
expires after four months.) It gives its protections to all lawful occupants of
housing accommodations, big or small, regulated or unregulated, in and outside
of New York City, open to nearly any interpretation a judge chooses to put on
it.

Conclusion

            The
C19EPA was designed to shut down eviction proceedings through the period when
New Yorkers are most likely to be receiving the first two waves of vaccines.
While it does not abolish these proceedings altogether, it adds so many layers
of difficulty to them as to make them extremely impractical, at least, unless
prosecuted in Supreme Court.

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