New Legislation Will Stall Eviction Cases

Belkin Burden Goldman LLP is closely following impending legislation promulgated by the New York State Legislature that will significantly impact owners ability to commence and/or prosecute eviction proceedings/actions during the COVID 19 pandemic. Outlined below is a summary of S. 9114/A. 11181 also known as the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 [the “Bill”]. The Legislature is expected to enact the Bill which will have significant repercussions with regard to any residential proceeding or action seeking possession and/or possession based upon the failure to pay rent against any “Tenant” which is broadly defined as not only the tenant of record but any “lawful occupant of a dwelling unit” or any person responsible for the payment of rent or use and occupancy. This Bill does not affect the landlord’s ability to sue the tenant of record in a plenary action for rent in Civil or Supreme Court subject to the Court’s monetary jurisdictions. An exception is made for any Tenant who is engaging in “objectionable or nuisance behavior”.

The Bill mandates that all actions or proceedings involving rent and/or possession be stayed 60 days or any such proceedings brought within 30 days from when the Bill becomes effective (which is anticipated to be the date the bill is signed by the governor) to enable the Court to promulgate the Hardship Declaration which the Court must serve on all respondents in the Tenant’s primary language with the requisite language that must be in 14 pt. type. This also stays the commencement of any new actions or proceedings. Once promulgated, landlords will have to serve the Hardship Declaration together with any rent demand or other legal notice required to be served by the lease or law. The Notice of Petition must attach the Hardship Declaration and the Bill requires service by personal delivery and if it can’t be personally delivered using the CPLR “due diligence standard”, then the landlord can resort to RPAPL 735 service. Therefore, the Bill imposes a stricter and more time consuming manner of service than previously existed. When filing the affidavit of service of the Notice of Petition and Petition, the landlord must file an affidavit under penalty of perjury setting forth the manner of service of the Hardship Declaration and that the landlord did not receive the Hardship Declaration from the Tenant. Even where a warrant has already been issued and/or for any proceeding pre March 7, 2020, no Tenant can be evicted if the Hardship Application has been submitted by the Tenant to the landlord and all landlords will have to establish that it has been served, how it was served and that it was not received in order to execute on a previously issued warrant.

The Hardship Application does not require the production of any documentation nor does it require the Tenant to identify which of the laundry list of qualifications for protection it claims is applicable to the Tenant which includes the following:

1. Significant loss of household income due to COVID 19.
2. Increased out of pocket expenses with regard to health impacts or related to performing essential work.
3. Caring for children, the elderly, sick or disabled family members that affects the tenant or household member from obtaining employment that will cover necessary out of pocket expenses.
4. It would be a hardship for the tenant to relocate or have sufficient funds to pay for moving expenses.
5. A catchall clause where the tenant or merely a household member has been affected by circumstances due to COVID 19 that have impacted their income or ability to secure meaningful employment.

If the Tenant provides the landlord with the signed Hardship Declaration then:

1. The landlord is not permitted to commence an action or proceeding to recover possession until at least May 1, 2021 unless the proceeding or action involves persistent nuisance behavior by the Tenant or members of the household.
2. The court is not permitted to enter any default judgments through May 1, 2021.
3. Already issued warrants of eviction cannot be executed upon unless the court finds persistent nuisance behavior by the Tenant or a member of the household. This exception pertains only to already filed nuisance proceedings. If the nuisance conduct is new, then the landlord must commence a new proceeding.

The bill also contains protections for small property owners of properties that contain 10 or fewer apartments with respect to foreclosure proceedings. There is a moratorium on tax sales and foreclosures for the small property owners who have experienced hardship as a result of COVID 19.

There are many statutory requirements so it is critical that you reach out to BBG for further clarification and assistance.