By Eileen O’Toole, Esq., Contributing Editor
This month, a flurry of court activity during the summer’s dog days has focused attention on New York’s eviction moratorium and rent relief program. A preview of other developing issues may be found in an OATH decision involving dining sheds, as well as conflicting Kings County court decisions that interpret the retroactive effect of HSTPA provisions on pending owner use eviction proceedings.
On Aug. 12, the United States Supreme Court (SCOTUS) granted plaintiff property owners an injunction, barring enforcement of Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA). This provision precluded owners from contesting a tenant’s self-certified Hardship Declaration while New York’s eviction moratorium remained in effect, currently through Aug. 31, 2021. This provision had effectively blocked the initiation or continuation of nonpayment proceedings since enactment late last year. In Chrysafis v. Marks (LVT #31566), SCOTUS found that the subject CEEFPA provision denied owners due process. But the Court noted that the previously enacted NY Tenant Safe Harbor Act (TSHA) remained in effect, permitting tenants to raise a COVID-related hardship defense in eviction proceedings.
The New York Court system reacted quickly to the Chrysafis decision and issued several administrative orders and an explanatory memorandum that appear designed to step up the processing of dormant housing court eviction proceedings, while ensuring that TSHA and rent relief program provisions are considered in adjudicating disputes. Administrative Order (AO) 244/21 (LVT #31568) requires owners with pending eviction proceedings to notify the court, on a provided form, of any pending or granted application filed under New York’s COVID-19 Emergency Rental Assistance Program (CERAP). AO/245/21 (LVT #31569) provides for resumed processing of all residential eviction matters, and modifies prior requirements for processing eviction proceedings commenced before March 17, 2020.
The NYC Civil Court also issued DRP-127 (LVT #31567) concerning directives and procedures for court management of pre-pandemic eviction proceedings. DRP-127 outlines how to request judgments and eviction warrants, and how to obtain permission to execute on an eviction warrant issued in such cases before March 17, 2020. A New York Court System Memorandum (LVT #31570) also provides additional guidance in response to the Chrysafis ruling, and discusses what local courts now require (or no longer require) in connection with CEEFPA, as well as the continued application of the TSHA.
While the uncontested use of Hardship Declarations may now be blunted, application of CEEFPA, TSHA, and CERAP will likely remain recurring court issues. In 2115 Wash. Realty v. Braxton (LVT #31549), the court permitted a tenant in a nonpayment proceeding to raise a defense to delay eviction by relying on the TSHA even though the court found the tenant ineligible to assert a defense under the CEEFPA. And in Bibow v. Bibow (LVT #31550), a Suffolk County court ruled that a licensee-daughter who didn’t pay rent didn’t qualify to assert a defense under CEEFPA after filing a Hardship Declaration.
Turning back to the HSTPA, in Zabala v. Mealie (LVT #31543), a Brooklyn Housing Court decision came to a contrary result to one reached by a different Brooklyn Housing Court decision reported last month (see LVT #31513). In Zabala, the Court followed the Appellate Division’s 2021 decision in Harris v. Israel, and held that the "good faith" standard in effect when landlord commenced its owner’s use case, rather than the “immediate and compelling necessity” standard made effective in June 2019 by HSTPA, applied to this pre-HSTPA proceeding.
Finally, in an administrative proceeding (LVT #31558) touching on various issues that may increase in response to DOT’s Open Restaurants Program, the OATH upheld a DOB violation based on work without a permit involving a sidewalk shed for a dining café. The affirmed violation involved placement of the shed to adjoin a residential building, failure to maintain at least 8 feet on the sidewalk for pedestrians, and removal of the shed after the restaurant closed without obtaining a DOB permit.