On June 18, 2020, Chief Administrative Judge Lawrence K. Marks issued a long-awaited Memorandum concerning the opening up of Housing Court and the procedure for addressing residential and commercial summary proceedings. Unfortunately, the Memorandum has only served to cause mass confusion in the legal community.

On May 7, 2020, the Governor issued Executive Order 202.28 and ordered 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.”

As such, the Governor’s initial moratorium on the commencement or enforcement of eviction proceedings was extended until August 20th, but more significantly, the initial moratorium was qualified by the Governor in his May 7th Executive Order such that the moratorium on the commencement of eviction proceedings was only  for nonpayment of rent … 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.”

Notably, based upon the clear language of the Governor’s May 7th Executive Order, the moratorium was specifically directed to non-payment proceedings; therefore, holdover proceedings based upon a tenant’s breach of lease obligations other than the payment of rent presumably should have been allowed to proceed after June 20th.

On Friday, May 22, 2020, Judge Anthony Cannataro, the Administrative Judge of the NYC Civil Court, issued 3 new Directives relating to Governor Cuomo’s Executive Order 202.28 and required 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 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”).

In his June 18, 2020 Memorandum, Judge Marks, while citing to the Governor’s Executive Order, went far beyond the express provisions of the Governor’s Order. Judge Marks’ bewildering Memorandum seemingly can, as some attorneys have, be interpreted to halt all eviction proceedings “until further notice”, whether based upon nonpayment of rent or otherwise, and whether the nonpayment of rent is as a result of a financial hardship resulting from the COVID-19 pandemic or not.

Furthermore, Judge Marks laid out steps for filing new proceedings which are required to be done via mail or electronic delivery system which is not in place yet in Housing Court. Those steps include, in commercial and residential eviction proceedings, whether based on nonpayment of rent or any other ground, that three additional boilerplate documents accompany the petition: (i) a form attorney’s affirmation and (ii) a form Petitioner affidavit, both of which state that the individual has reviewed all the various state and federal restrictions and qualifications on eviction proceedings and believes in good faith that the proceeding is consistent with those restrictions and qualifications, and (iii) a form notice to the tenants (in English and Spanish) informing them that they may be eligible for an extension of time to respond to the petition in light of the COVID-19 pandemic and directing them to a telephone number and/or website for further information.

Finally, Judge Marks advised:

“Whether or not an answer is filed in an eviction matter, further hearing of the case shall be stayed until such time as gubernatorial executive Orders suspending statutory timetables for the prosecution of legal matters (…) expire. …. this continues the suspension of eviction matters for the time being, with a singular exception: Eviction matters commenced on or before March 16, 2020 in which all parties are represented by counsel shall be eligible for calendaring for virtual settlement conferences.”

The only thing that is clear from Judge Mark’s cryptic Memorandum is that New York City Housing Court has essentially ceased to function. As this office has advised in prior Blog Posts, until there is some real clarity concerning the commencement and prosecution of Housing Court summary proceedings, landlords should begin exploring the possibility of proceeding either in Civil Court (in the non-housing part) or Supreme Court. Contact Daniels Norelli Cecere & Tavel, PC to review the particulars of your case and determine how it may be best to proceed in light of Judge Marks’ recent Memorandum.

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