Attorneys find ways to “eject” tenants without Housing Court

Alternatives are slower and more costly but worth it for some

TRD New York /
May.May 26, 2020 07:00 AM
Clockwise from left: Bronx housing court at 1118 Grand Concourse, Governor Andrew Cuomo, Judge Lawrence Marks, New York Supreme Court at 60 Centre Street (Getty; Google Maps; Wikipedia; New York State Courts)

Clockwise from left: Bronx housing court at 1118 Grand Concourse, Governor Andrew Cuomo, Judge Lawrence Marks, New York Supreme Court at 60 Centre Street (Getty; Google Maps; Wikipedia; New York State Courts)

Housing Court remains closed and an eviction moratorium runs through Aug. 20, but attorneys say they have other ways to get rid of tenants.

Starting this week, the broader court system is accepting new non-essential cases via electronic filing. That leaves the door open for evictions via state Supreme Court, attorneys say.

It is not customary to file residential eviction cases in that venue, but a court spokesperson said it is allowed. And in a crisis without parallel, legal practitioners for financially stressed landlords are thinking outside the box.

“The Supreme Court of the state of New York has a tremendous amount of power in terms of the type of relief it can grant parties and litigants,” said Matthew Brett, a partner at Belkin Burden Goldman. “There’s a right to bring something called an ‘ejectment action’ — a common-law eviction proceeding not done in summary or Housing Court proceeding.”

The process is “not the most expeditious,” said Brett, who said he has brought such cases in Supreme Court.

The action is meant to recover possession of an apartment by removing the occupant — “like James Bond ejecting out of his plane,” said Luise Barrack, head of the litigation department at law firm Rosenberg & Estis.

“You can bring an ejectment action in Supreme Court in lieu of a holdover or non-payment eviction in Housing Court,” Barrack said. “[The court] may not like it, but there is jurisdiction, and there may be people that can avail themselves.”

The process in Supreme Court differs from that of Housing Court in some important ways. First, the cost to file in Supreme is significantly higher — starting with $210 for an index number. And it includes discovery, which takes time and runs up attorney fees.

Also, evictions in state Supreme Court are executed by sheriffs, not marshals. And the process is a plenary action — meaning the merits of the cause are fully determined — rather than a summary action, which is streamlined and has fewer formalities.

“The timeline is going to be a whole lot slower than typically exists in landlord-tenant cases,” said Barrack. “Certainly if the moratorium on evictions is now through August, you’re not going to push up against that in a Supreme Court action.”

An ejectment action is not the only option. If the tenant owes more than $25,000, a landlord could seek a monetary judgment, rather than possession.

Bringing such actions in Supreme Court may also draw ire from its judges, who usually do not have to bother with matters meant for Housing Court. That could pressure Housing Court to reopen.

“You’ll have Supreme Court personnel saying, ‘we have a deluge of things that wouldn’t have otherwise come to us,’” said Barrack.

Even without that, pressure is building on Housing Court, With landlords unable to file summary eviction proceedings there, and about 25 percent of tenants skipping rent in New York City, a backlog of cases is growing.

“If you don’t open Housing Court soon, it’s not going to age well,” said Brett. “It’s one of the busiest courts in the country. There’s going to be a tremendous burden.”


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