Impact of the Passage of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020:
New Restrictions and Available Remedies
On December 28, 2020, NY Governor Andrew Cuomo signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“Act”). The Act (S.9114/A.11181) temporarily prevents residential evictions and generally frustrates landlords’ ability to seek, collect and enforce residential leases by implementing the following procedural roadblocks. Note that the Act does not apply to commercial cases.
- Stay of pending eviction Proceedings – Any eviction proceeding pending on the effective date of the Act, including eviction proceedings filed on or before March 7, 2020, or commenced within thirty days of the effective date of the Act (December 28, 2020), is stayed for at least sixty days, or to such later date as the chief administrative judge shall determine. The only exception is cases in which the tenant is substantially infringing on the rights of other tenants or creating a safety hazard. During the stay period, the courts are directed to send all tenants a form “hardship declaration” with a notice (see below for text) advising the tenant that if he signs and returns the form he cannot be evicted until after May 1, 2021, unless he is substantially infringing on the rights of other tenants or creating a safety hazard. The notice must also include a list of all local Legal Aid offices.
- Pre-eviction notices – During the period covered by Act (through May 1, 2021), all predicate notices for both nonpayments and holdovers are required to include the hardship declaration with notice. If a tenant sends back a hardship declaration and no proceeding has been initiated against the tenant, then any proceeding—all nonpayments and many holdovers– may only be commenced after May 1, 2021.
- Petitions; Client affidavits – During the period covered by Act, all petitions must include an affidavit attesting that a hardship declaration was served on the tenant and demonstrating the manner in which it was served and an affidavit attesting at the time of filing that the landlord has not received a hardship declaration from the tenant or any other occupant. In addition, the Notice of Petition must include a copy of the hardship declaration form. Housing Court petitions must be served using the slower and more demanding service method used for Supreme Court actions.
- Obtaining Warrants in Pending cases – During the period covered by Act, if a warrant of eviction has not already issued and a hardship declaration is provided by the tenant, the eviction proceeding will be stayed until May 1, 2021.
- Default Judgments – During the period covered by Act, any default judgment requires a motion. The Act requires a hearing on the return date of the motion, but does not specify what the landlord must establish, beyond proof of service of the moving papers. In the event the tenant submits a hardship declaration, the Court must vacate the default. If a default judgment was previously issued, the default judgment may be vacated upon oral or written request; no order to show cause will be required to vacate the default. Under the Act, the written or oral request is to be made at the hearing on the landlord’s motion for a default judgment; it is unclear how the law will be applied in practice to existing default judgments.
- Issued Warrants – During the period covered by Act, all previously issued warrants that have not yet been executed are stayed until the court holds a status conference. If the tenant provides a hardship declaration, execution of the warrant shall be stayed at a minimum until May 1, 2021, unless the tenant is substantially infringing on the rights of other tenants or creating a safety hazard. If the existing petition does not allege such conduct, a new petition must be filed. If the petition does allege such conduct, the landlord must establish that the conduct is ongoing. All warrants must now recite either that the tenant was served with a hardship declaration and notice and has failed to return it, or that the tenant is substantially infringing on the rights of other tenants or creating a safety hazard. No procedure has been established, or even proposed, for amending existing warrants.
Given the unprecedented nature and scope of the Act, we recommend the following actions to protect your interests and continue to ensure that tenants fulfill their rental responsibilities.
- Continue to Serve Rent Demands – Even with the various roadblocks that have now been put in place by the Act, we recommend that you to continue serving rent demands on delinquent tenants. The major teeth to this newest legislation only comes into pay should a tenant serve the hardship declaration. If the tenant does not, we can continue to the petition in housing court. Additionally, if a declaration is filed by the tenant, that declaration can then be used in a different proceeding if we believe the tenant not to be acting in good faith.
- Plenary Actions against Tenants that file a Declaration – In the event that a tenant does provide the requisite hardship declaration as provided for in the Act, we recommend pursuing a plenary action against the tenant in the relevant court based on the amount of money owed: up to $25,000 for Civil Court, above $25,000 in Supreme Court. By pursuing the tenant in a non-housing court solely for a money judgment, you are maintaining pressure on the tenant and avoiding the needless procedural hurdles put in place by the Act, and potentially obtaining a judgment that can later be used to obtain possession once Housing Court resumes normal operation.
- Pursue Guarantors – Nothing in the act prevents a landlord from pursuing a guarantor for a money judgment for all monies owed. Depending on the language of the specific guaranty, we may recommend that you commence an action against a guarantor with a motion for summary judgment in lieu of complaint, which has the advantage of immediately placing the case on the Court’s calendar and requiring the guarantor to either respond and file papers in opposition to summary judgment risks a default judgment. Alternatively we can serve a standard summons and complaint.
Our firm stands ready to aggressively pursue any and all available remedies in these extremely turbulent times. We welcome any questions or concerns you may have on how best to proceed on any of your cases. At Rose and Rose, we pride ourselves on our tenacity and ingenuity in service to our clients. We will continue to do everything in our power to safeguard your interests, no matter what the powers that be attempt to do to frustrate and destroy those interests.
Text of Hardship Declaration provided below:
I am a tenant, lawful occupant, or other person responsible for paying rent, use and occupancy, or any other financial obligation under a lease or tenancy agreement at (address of dwelling unit). YOU MUST INDICATE BELOW YOUR QUALIFICATION FOR EVICTION PROTECTION BY SELECTING OPTION “A” OR “B”, OR BOTH.
A. ( ) I am experiencing financial hardship, and I am unable to pay my rent or other financial obligations under the lease in full or obtain alternative suitable permanent housing because of one or more of the following:
- Significant loss of household income during the COVID-19 pandemic.
- Increase in necessary out-of-pocket expenses related to performing essential work or related to health impacts during the COVID-19 pandemic.
- Childcare responsibilities or responsibilities to care for an elderly, disabled, or sick family member during the COVID-19 pandemic have negatively affected my ability or the ability of someone in my household to obtain meaningful employment or earn income or increased my necessary out-of-pocket expenses.
- Moving expenses and difficulty I have securing alternative housing make it a hardship for me to relocate to another residence during the COVID-19 pandemic.
- Other circumstances related to the COVID-19 pandemic have negatively affected my ability to obtain meaningful employment or earn income or have significantly reduced my household income or significantly increased my expenses. To the extent that I have lost household income or had increased expenses, any public assistance, including unemployment insurance, pandemic unemployment assistance, disability insurance, or paid family leave, that I have received since the start of the COVID-19 pandemic does not fully make up for my loss of household income or increased expenses.
B. ( ) Vacating the premises and moving into new permanent housing would pose a significant health risk because I or one or more members of my household have an increased risk for severe illness or death from COVID-19 due to being over the age of sixty-five, having a disability or having an underlying medical condition, which may include but is not limited to being immunocompromised. I understand that I must comply with all other lawful terms under my tenancy, lease agreement or similar contract. I further understand that lawful fees, penalties or interest for not having paid rent in full or met other financial obligations as required by my tenancy, lease agreement or similar contract may still be charged or collected and may result in a monetary judgment against me. I further understand that my landlord may be able to seek eviction after May 1, 2021, and that the law may provide certain protections at that time that are separate from those available through this declaration.