While the real estate industry is still reeling from the recent overhaul of rent laws arising from the Housing Stability & Tenant Protection Act of 2019 (“HSTPA”), it was hit with yet another wave of unwelcome procedural hurdles to deal with in the form of an August 22, 2019 administrative directive and advisory opinion issued by Judge Anthony Cannataro, the Chief Administrative Judge of the Civil Court of the City of New York, involving compliance with the HSTPA.
Among other things, the HSTPA directs that every warrant (in both commercial and residential summary proceedings) must state the earliest date upon which execution of a warrant of eviction may occur. In direct response to this requirement, the August 22 directive states that where there is a judgment rendered after trial, stipulation, hearing or inquest, any resulting decision/order or file jacket must be stamped with a new “Earliest Eviction Date” (“EED”) stamp that reads “The earliest date execution of this warrant may occur pursuant to the order of the Court is X”.
If one were to stop there, one would think that the above statutory requirement in the HSTPA would be satisfied. Unfortunately, that is not the case. The same day that the Civil Court issued its directive, it also issued an advisory notice stating that “When there is a judgment rendered after trial, stipulation, inquest or hearing decision, when deciding the EED, please consider:
- where there is a payment schedule, the EED should be based on the last date of payment;
- where there is a payment schedule and the EED is based on the last date of payment, any party seeking to accelerate the EED be expedited must seek leave of Court.
In short, when a landlord agrees to stay execution of a warrant of eviction on the condition that certain payments be made, the landlord will be required to go back and obtain “leave of Court” prior to executing on its warrant should there be a default. This is a significant departure from the current state of play where, in the event of a tenant’s payment default, a landlord would simply submit an affidavit of default to the marshal who would then proceed to serve a marshal’s notice and schedule an eviction.
During a recent bar association meeting, Judge Cannataro stated that while the Court would consider ex-parte applications if provided for in a stipulation of settlement, he could not guarantee any sort of uniformity in approach by judges throughout the five boroughs–creating even more uncertainty in the eviction process.
The new directive and advisory notice are certain to bring: (i) confusion to unrepresented litigants as to what the “EED” is, (ii) delay (measured in weeks/months) in obtaining leave of Court prior to allowing a landlord to execute on its marshal’s notice, (iii) additional cost and expense for landlords while rent continues to accrue as unpaid; and (iv) lack of predictability in assessing how, or whether, any particular judge will permit an ex parte application.
That being said, it is the overly optimistic hope of this practitioner that given the increased workload that Court parts will likely see in the deluge of ex parte orders and/or motions from landlords seeking permission to evict, the Courts will be compelled to raise the standards that are applied to orders to show cause filed by tenants seeking to stay evictions for which landlords will have already been given specific “leave” to proceed with. After all, if one of the goals of this directive is for the Housing Court to begin acting more like other Courts throughout the State with regard to the granting and vacating of conditional stays, the Housing Court should also be advancing this noble objective by declining to sign multiple orders to show cause submitted by tenants seeking ex parte injunctions often based on little more than undocumented, self-serving, empty promises, as has been a practice for the last two decades.
Scott F. Loffredo is a partner in the Firm’s Litigation Department.
He can be reached at firstname.lastname@example.org