Judge rules evictions guidance unconstitutional, moratorium invalid

Landlord attorneys say decision could open door to some evictions

TRD New York /
Jul.July 02, 2020 05:30 PM
Photo illustration of Gov. Andrew Cuomo, Judge C. Stephen Hackeling and Chief Justice Lawerence Marks (Getty, iStock)

Photo illustration of Gov. Andrew Cuomo, Judge C. Stephen Hackeling and Chief Justice Lawerence Marks (Getty, iStock)

A Suffolk County judge’s surprise ruling may offer hope to landlords looking to move certain evictions forward.

In a June 30 decision, Judge C. Stephen Hackeling addressed the conflict between guidance from the New York administrative judge and Gov. Andrew Cuomo on what evictions are permitted. Hackeling states that the court’s guidance can’t overrule the governor’s executive order, but also identifies certain aspects of the order as “invalid.”

As part of his May order, Cuomo allowed some evictions to resume last week, namely those unrelated to financial hardship caused by Covid-19. This allowed holdover cases, which are initiated for reasons other than non-payment of rent, to resume. But Chief Justice Lawrence Marks issued guidance halting all eviction proceedings until at least July 7.

Hackeling called such guidance an “unconstitutional usurpation of the Legislative and Executive prerogatives and powers” because it seeks to “contradict, limit, or expand” an executive order.

The bold ruling by a low-level state judge — New York District Court hears misdemeanor and small-claims cases on Long Island — essentially said the chief justice had gone too far.

“A Judicial Administrative Order may only be procedurally supplemental in nature,” Hackeling wrote.

A representative for the New York Office of Court Administration declined to comment.

Hackeling’s decision — which was related to an ongoing commercial eviction case filed in 2019 — also questioned the governor’s ability to bar any eviction cases for more than 30 days.

The judge noted that Cuomo’s executive order does not identify specific statutes that are being suspended in relation to evictions and that it exceeds the state’s 30-day suspension limit (the May order calls for a 90-day halt on certain evictions after June 20). He called the executive order “invalid and of no legal import.”

That statement might have carried more weight for residential cases had the governor this week not signed the Tenant Safe Harbor Act, which kicks in after the executive order expires. The law extends eviction protection for residential tenants by allowing them to use Covid-related financial hardship as a defense in eviction proceedings.

The law also allows money judgments for nonpayment of rent, but doesn’t permit landlords to take possession of their property while local Covid restrictions continue.

“I think the decision seems to cast doubt on the ability of the court guidance to impair substantive rights,” Sherwin Belkin, a partner at Belkin Burden Goldman, who was not involved in the case, said in an email.

The attorney added that the new law provided a framework for housing cases “which the court administration must facilitate and implement, not impair or impede.”

Landlord attorney Adam Leitman Bailey said the ruling could allow more commercial evictions related to nonpayment to move forward. He’s advising attorneys at his firm to use the decision on behalf of their clients.

“This gives landlords and foreclosure attorneys an opening that we didn’t have,” he said.

In the Suffolk case, the landlord — Anthi New Neocronon Corp. — is moving forward with removing its tenant at 28 East Main Street in Babylon, said attorney Gerard Glass. Ironically, the tenant in this case is the Coalition of Landlords Homeowners & Merchants. An attorney for the group, Paul Bartels, said he’s still reviewing the decision.

Tenant attorney David Hershey-Webb said he is skeptical that the Suffolk court’s decision will have much of an impact in New York City or the rest of the state.

“I don’t think the courts, overall, are looking to greenlight evictions in the middle of the pandemic,” he said.

Earlier this week, a Manhattan federal judge ruled against three Westchester landlords who sought to block the state’s eviction moratorium on constitutional grounds. Though advocates warned of a deluge of evictions when Housing Court reopened last Monday, few such cases have been filed.

Write to Kathryn Brenzel at [email protected]


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