First the Governor and now the Courts have moved the goal posts with respect to bringing and enforcing eviction actions against delinquent residential and commercial tenants in New York. Most recently, pursuant to an Administrative Order issued on June 18, 2020 by New York State Administrative Judge, Lawrence K. Marks, the Courts have established new protocols for eviction filings including the requirement for landlord attorney affirmations and certain required notices to tenants. The new Court rules must now be read in concert with the existing Governor’s Executive Orders regarding evictions.
History of Executive Orders Regarding Eviction Proceedings in Response to COVID-19
On March 20, 2020, Governor Cuomo issued Executive Order 202.8, the first of several Executive Orders limiting landlords’ abilities to file and enforce eviction proceedings during the COVID-19 pandemic. Executive Order 202.8 specifically prohibited enforcement of evictions against residential and commercial tenants. Attorneys were quick to point out that the Executive Order did not limit initiation of new eviction proceedings. The Order also suspended statutory timeframes, including a tenants’ time to answer, until April 19, 2020.
Executive Order 202.14, issued on April 7, 2020, continued the suspension of statutory timeframes made by Executive Order 202.8 for thirty days, until May 7, 2020.
On May 7, 2020, Executive Order 202.28 modified the blanket moratorium on enforcement of residential and commercial evictions put in place by Executive Order 202.8. The language was expanded to include a prohibition against both enforcement and initiation of eviction proceedings. At the same time, Executive Order 202.28 limits eligibility for eviction protection to properties “owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic.” The new rule outlined in Executive Order 202.28 went into effect on June 20, 2020 and will expire on August 20, 2020. Based solely on Executive Order 202.28, initiation and enforcement of evictions may resume in two scenarios: 1) on grounds other than nonpayment of rent; and 2) for nonpayment of rent against tenants who do not qualify for unemployment and do not have other COVID-19 related financial hardships.
Most recently, on June 6, 2020, Executive Order 202.38 further extended the suspension of statutory timeframes put in place by Executive Orders 202.8 and 202.14 through July 6, 2020.
Chief Administrative Judge Memorandum
On June 18, 2020, New York State Chief Administrative Judge, Lawrence K. Marks, issued an Administrative Order (AO/127/20) and guidance memorandum further complicating the rules for eviction proceedings during the pandemic. The Order establishes protocol for new eviction filings and for the resolution of previously filed eviction actions.
Initially, evictions that were commenced on or before March 16, 2020, in which all parties are represented by counsel, are now eligible for calendaring for virtual settlement conferences. Additionally, new eviction proceedings can now be filed through NYSCEF or by mail. All residential and commercial eviction proceedings must include two new documents (available on the Court’s website, here):
- Attorney Affirmation/Affidavit: The petitioner’s attorney must submit a form affirmation stating he or she has reviewed the state and federal restrictions and qualifications for eviction proceedings and believes in good faith that the proceeding is consistent with them. In instances where the petitioner is self-represented, he or she must submit a similar affidavit.
- Notice: The petitioner must submit a form notice to the respondents/tenants (in both English and Spanish), informing them that they may be eligible for an extension of time to respond to the petition in light of the legal directives related to COVID-19, and directing them to a telephone number and/or website link for further information. There are separate notices for proceedings inside and outside of New York City.
Despite giving landlords the ability to initiate eviction proceedings, hearings for all newly filed evictions are stayed until the expiration of the Governor’s Executive Orders suspending statutory timetables (these include Executive Orders 202.8, 202.14, and 202.38, as discussed above). The most recent Executive Order suspending statutory timetables will expire on July 6, 2020. Presumably, eviction hearings and enforcements will resume after this date. For new filings, tenants’ timetables to answer will not begin tolling until July 6, 2020. In his memorandum, Chief Administrative Judge Marks promises to issue further guidance as the July 6, 2020 expiration date approaches.
In sum, subject to compliance with the Administrative Order issued by Judge Marks on June 18, 2020, landlords can now commence eviction proceedings against tenants who have not be affected by COVID-19 related financial hardships and eviction proceedings based on grounds other than nonpayment of rent. These evictions will likely be scheduled for hearings after July 6, 2020 and tenants need not answer until after that date. Landlords remain unable to commence eviction proceedings for nonpayment of rent against tenants suffering from COVID-19 related financial hardships through August 20, 2020, pursuant to Executive Order 202.28.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.