On Friday, May 22nd, Judge Anthony Cannataro, the Administrative Judge of the NYC Civil Court, issued 3 new Directives relating to Governor Cuomo’s Executive Order 202.28 which limits the commencement of summary nonpayment proceedings and the enforcement of eviction orders until August 20, 2020. The Directives issued by Judge Cannataro are:

Executive Order 202.28 was issued on May 7, 2020 and provided, among other things, that:

“There shall be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020.”

The Directives issued on May 22nd  by Judge Cannataro in response to Governor Cuomo’s Executive Order 202.28 goes beyond the express provisions of the Executive Order and requires with respect to the commencement of any new nonpayment proceeding, request for a default judgment in a pending proceeding or the enforcement of an issued warrant of eviction, that landlords to now  file an affidavit by a person with knowledge of the facts stating that the tenant(s) is not a person eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic (“COVID Exemption”).

On May 26th Judge Cannataro clarified that his Directives do not require landlords to undertake independent investigations but rather only requires landlords to advise the tenants of the existence of the COVID Exemption.

Thus, Judge Cannataro made clear that his May 22nd Directives do not require landlords to engage in investigations, make inquiries to tenants, or request supportive documentation from tenants. Rather, Jude Cannataro clarified that landlords are merely required to advise each tenant of their eligibility for the COVID Exemption as per Governor Cuomo’s Executive Order 202.28 which advisory can be made by the landlord by a supplemental notice to the tenant in the rent demand served upon the tenant. If a tenant should then advise the landlord that they qualify for the COVID Exemption, then a proceeding may not be commenced until August 20th. Judge Cannataro further clarified that if a tenant fails to respond to the landlord’s advisory concerning the COVID Exemption, the landlord is then free to commence a nonpayment proceeding but noted that a tenant would nevertheless be permitted to raise the COVID Exemption as an affirmative defense.

Another option available to clients is that landlords may commence an ejectment action against a tenant in Supreme Court where, as of now, there is no requirement for the landlord to advise a tenant of the COVID Exemption as a predicate to commencing the case. An additional benefit to commencing an ejectment action in Supreme Court is that a landlord can seek, in addition to rent arrears, late and other fees, along with legal fees, in the same action, something that the Housing Stability Tenant Protection Act (“HSTPA”) prohibits in a summary proceeding.  While the benefit of a summary proceeding was its “summary” expeditious nature, that has been eroded over the years, and most recently severely hampered by HSTPA. We believe it is safe to assume that the many issues raised by Executive Order 202.28 and Judge Cannataro’s expansive Directives will only further erode the “summary” nature of nonpayment proceedings in Housing Court thereby making the commencement of an ejectment action in Supreme Court possibly a better choice.

Landlord Tenant issues are constantly evolving in this COVID-19 environment. Daniels Norelli Cecere & Tavel, PC is monitoring daily events closely and will keep you apprised of changes as they happen. We are here to address any questions regarding Judge Cannatero’s Directives concerning nonpayment proceedings in Housing Court, or whether there is a benefit, given the particular facts of each case, to instead commencing an action in Supreme Court.

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