7-27-20 Evictions Update

On June 18, 2020, Chief Administrative Judge Marks issued a memorandum addressing procedures in residential and commercial evictions proceedings.

Commencement of Eviction Proceedings

Effective June 20, 2020 any commencement documents are to be filed only through NYCEF or mail, and must be accompanied by two additional documents:

  1. An Affirmation by the Petitioner's Attorney indicating counsel has reviewed the various state and federal restrictions as to foreclosure proceedings and believes in good faith that the proceeding is consistent with those restrictions and qualifications.
  2. A notice to tenants to inform them that they may be eligible for further extensions due to the pandemic and provides them with resources to find further information. Please note that there are separate notices for tenants inside NYC and outside of that geographic area.

The Court has provided a form Attorney Affirmation for the Attorney to attest that not only has he/she reviewed all state and federal restrictions but also that the Attorney has consulted with his/her client to confirm that the tenant was not eligible for unemployment or otherwise experiencing a financial hardship due to COVID-19.

Commencement of Eviction Proceedings

Based on the plain language of the Administrative Order, best practices for commencement would include documenting all information that can be obtained and communicating that information to the handling Attorney. However, the gap that still exists is that Executive Order 202.8 and 202.28, which created, and then extended, the eviction moratorium, specifically references eviction proceedings as they pertain to failure to pay rent. There has been significant debate over whether holdover proceedings are included within the moratorium, with the interpretation weighing in favor of the conclusion that holdover proceedings, such as those commenced by a lender, servicer, or investor, do not fall within these restrictions. Despite this however, commencement of an action at this time, still requires an Attorney Affirmation at commencement. The potential problem that arises is due to the fact that lenders, servicers, or investors often do not have contact information for tenants. As such, a possible workaround for this issue would be to include a statement in the Attorney Affirmation that the instant eviction does not fall within the restrictions of Executive Order 202.28 because the eviction is in the form of a holdover proceeding and not for the nonpayment of rent.

Pending Eviction Matters

The Administrative Order reiterates that whether an answer is filed or not, any further adjudication of the case will be stayed until the previously entered orders suspending evictions proceedings have expired. The exception to this is in matters where all parties are represented by counsel, in which case, virtual settlement conferences may be scheduled.

S8192-B – Partial Eviction Moratorium

Following the issuance of the Administrative Order, on June 30, 2020, Governor Cuomo signed into law S8192-B, which extended a partial eviction moratorium for residential tenants, or other lawful, occupants who have suffered a financial hardship during the COVID-19 covered period by precluding the court from issuing a warrant of eviction or judgment of possession. The new law defines the covered period as the period of March 7, 2020 until such time as none of the provisions in Executive Orders that closed or otherwise restricted activity in the county of the tenant's residence apply. Additionally, S8192-B sets forth relevant factors to consider when determining if a tenant suffered a financial hardship, including the income prior to the COVID-19 covered period, income during COVID-19, liquid assets, and eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, NYS Disability program, the home energy assistance program, or unemployment insurance or benefits under state or federal law.

Notably, the wording of the law was phrased broadly enough that it does not specify that it is applicable to only proceedings for non-payment of rent. Thus, for pending eviction matters, this new law could require a lender, servicer, or investor to obtain information about the tenant in order to persuade the court to issue a warrant of eviction or judgment of possession. As such, it is our recommendation to consider commencing cases as a means to establish contact with tenants and discuss potential settlement options.

For more information contact:

Attorney: Natalie A. Grigg, Esq.

Phone: 585-445-2610

Email: ngrigg@woodsdefaultservices.com


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