On September 2, 2021 NYS Governor Hochul signed into law another eviction moratorium extension through January 15, 2022 in response to the US Supreme Court ruling that the self-attesting Hardship Declaration, Part A of CEEFPA, violates the Due Process Clause as it failed to require Tenants to produce any evidence supporting its claim of hardship nor Landlords the right to contest the Declaration.  [Chrysafis v. Marks]. While the new law seeks to correct its failings, the amendments do nothing more than give the appearance of due process.

From a Landlord / Tenant perspective, the new law amends the Emergency Rental Assistance Program (ERAP), reinstates the Covid-19 Emergency Protect Our Small Businesses Act of 2021 (CEPOSBA) and the Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) through January 15, 2022 with some modifications.

Part A: ERAP was amended to provide additional assurances that any documentation or information provided in the course of administering the program would be kept confidential and only used for purpose of determining eligibility.  The law provides an exception to the hardship stay if a tenant intentionally caused “significant damage to the property or is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.” Landlords may commence new proceedings for objectionable conduct or nuisance during the stay period by additionally filing an affidavit under penalty of perjury with the petition attesting that the Respondent acted in such a manner OR if the court previously awarded a judgment against Respondent based upon objectionable or nuisance behavior, the court shall hold a hearing to determine whether the tenant is continuing to act in such a manner.

Part B: Commercial Eviction and Foreclosure Protections

The submission of the Revised Commercial Hardship Declaration stays eviction proceedings until at least January 15, 2022 for nonpayment of rent or for holding over after the expiration of the lease. CEPOSBA is substantially reinstated except that the Landlord may now make a motion to challenge the declaration of hardship.  In the Petition, the Landlord may attest that the Respondent has returned a hardship declaration but the Landlord believes in good faith that the Hardship certified in the declaration does not exist. A motion can then be made seeking a hearing on the validity of the hardship declaration. Self-Help, even if permitted by the lease, is not permitted through January 15, 2022.

Part C Residential Eviction and Foreclosure Protections:

Eviction proceedings for residential tenants are similarly stayed through January 15, 2022 for nonpayment of rent or for holding over after the expiration of the lease upon submission of the revised hardship declaration. Landlords may make a court motion seeking to vacate the stay through January 15^th by challenging the validity of the declaration of hardship. Other obligations set forth in CEEFPA are also substantially reinstated with some modifications to account for the challenging of the tenant’s declaration of hardship. 

Part D: In determining whether a tenant or lawful occupant suffered a financial hardship during the COVID-19 covered period, the court shall consider, among other relevant factors:

(i) the tenant’s or lawful occupant’s income prior to the COVID-19 covered period;

(ii)  the tenant’s or lawful occupant’s income during the COVID-19 covered period;

(iii) the tenant’s or lawful occupant’s liquid assets; and

(iv) the tenant’s or lawful occupant’s eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, the New York State disability program, the home energy assistance program, unemployment insurance or benefits under state or federal law or the Emergency Rental Assistance Program

The core elements of Due Process, reiterated by the Supreme Court in Chrysafis, are proper notice and an opportunity to be heard.  While Landlords are now given a chance to challenge the hardship declaration in a hearing, the failure of the law to require Tenants to produce evidence of their hardship other than a self-attesting statement fails to fulfill the notice element of Due Process which opens this law to additional judicial challenges.  Daniels Norelli Cecere & Tavel, PC is available for continued guidance and advise on how to navigate through these changing laws.