ADMINISTRATIVE ORDER 160/20 ISSUED AUGUST 13, 2020 ALLOWS CERTAIN RESIDENTIAL EVICTIONS TO PROCEED
Residential Eviction Matters Commenced Prior to March 17, 2020
Chief Administrative Judge Lawrence Marks issued Administrative Order 160/20 concerning the revised procedure for addressing residential eviction proceedings.
With respect to eviction matters commenced prior to March 17, 2020, commencing August 20, 2020, the court may begin accepting requisitions for warrants of eviction and requests to execute upon warrants based on judgments of possession that were issued before March 17, 2020. The request to proceed must be made by motion on notice to the Tenant(s) seeking to first initiate a conference by the court so they may inquire into the effects, if any, that COVID-19 has had upon the parties so as to determine any protection that tenant may be entitled to under federal law (for subsidized housing) and pursuant to the New York Tenant Safe Harbor Act (“SHA”). Following the conference, the court may direct an eviction to proceed, but not to take place before October 1, 2020.
Residential Eviction Matters Commenced After to March 16, 2020
Residential eviction matters commenced after March 16, 2020 continue to remain suspended until further order.
These directives by the Administrative Judge ignores the provisions of the Tenant Safe Harbor Act (SHA).
On June 30, 2020, Governor Cuomo signed the “Tenant Safe Harbor Act” into law. SHA prevents courts from issuing warrants of eviction or judgments of possession under defined circumstances. The court cannot issue a warrant or judgment if:
- It would be for non-payment of rent that accrued or came due during the COVID‑19 period, and it would be against a residential tenant or lawful occupant who has suffered a financial hardship during the “COVID‑19 covered period.”
SHA does not apply to residential tenants who have not suffered financial hardships during the COVID‑19 period; eviction for reasons other than non-payment of rent; and eviction for non-payment of rent that came due before the “COVID‑19 covered period”. (SHA defines the “COVID-19 covered period” as the time from March 7, 2020, until a time to be determined, when all the provisions restricting businesses, accommodations, and non-essential gatherings, as outlined in Governor Cuomo’s previous executive orders, come to an end in the county of the tenant’s residence.)
SHA allows a tenant to raise financial hardship as a defense to eviction in a summary proceeding. If the tenant establishes this defense, SHA permits courts to award landlord’s a money judgment for rent owed. In other words, even though a court cannot evict certain tenants who can document financial hardship, the court can still enter a money judgment for rent due during the COVID-19 covered period. If financial hardship defense is not documented to the satisfaction of the court, the tenant is subject to eviction.
Administrative Order 160/20 provides encouragement that the court are finally permitting certain evictions to proceed effective October 1, subject to the limitations outlined above. However, there is nothing in the SHA or in any Executive Order, which permits the delay of any residential eviction not entitled to protection by federal law or SHA, to October 1st. It is submitted that Chief Administrative Judge, in prohibiting any evictions until October 1st, exceeded his statutory and delegated powers to regulate the courts procedures and invaded the province of the legislature to regulate court procedure, a power that is Constitutionally conferred upon it under New York Constitution.
The provisions of Administrative Order 160/20 allows the eviction of any tenant where the proceeding was commenced prior to March 17th, but suspends until further order any proceeding commenced after March 16th while a positive step, in our opinion, exceeds the statutory and delegated authority and is subject to challenge.
Please contact Daniels Norelli Cecere & Tavel, PC to discuss how Administrative Order 160/20 may affect your case.