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NEW YORK STATE EVICTION UPDATE

No less than two days after the eviction moratorium had expired, the governor of New York signed into law Chapter 417 of the Laws of 2021 (the “Act”), an amended version of the  moratorium, protecting tenants from eviction at least until January 15, 2021. The Act was publicized as “new and improved” and alleged to strike a balance between protecting tenants from evictions and ensuring due process for the landlord.  However, the optimistic headline is just that – a headline. After reading the actual text of the The Act, it’s clear that the complexities have actually made it substantially more difficult for landlords to effectively evict any tenant, despite the safeguards put into place. Without getting into the full details and intricacies of the law, there are a few major changes worth noting.  As it applies to residential evictions, the Act does nothing but complicate matters for local courts and frustrate the eviction process for landlords in New York State until “at least January 15, 2022”.

Prior to the Act, courts generally would allow a landlord to pursue an eviction of a tenant so long as a hardship declaration had been provided to the tenant, but had not been signed or received back.  Now, the law effectively allows only evictions premised on nuisance to be heard at this time, regardless of whether hardship declaration has been submitted or not. [1]

To make matters more difficult, the Act now articulates the standard landlords have to meet in order to proceed with a nuisance eviction. The Act requires a landlord to show that a tenant either intentionally caused significant damage to the property or persistently and unreasonably engaged in behavior that substantially infringed on the use and enjoyment of other tenants or occupants” or “[tenant] caused a substantial safety hazard to others.” Meeting these standards requires the landlord provide a specific description with supporting evidence of the behavior alleged, and mere allegations will not suffice.  Given the specific criteria requirements and extraordinarily high burden to proof, this small exception to the blanket ban on evictions seems to be more impractical than possible.

The most anticipated change with the Act is the landlord’s ability to challenge the hardship declaration. Previously, a tenant facing an eviction would be able to avail themselves of the protections of the moratorium just by signing the declaration. However, in response to SCOTUS decision that ruled Part A of New York’s residential COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA) unconstitutional, the Act now provides landlords with an avenue to challenge the legitimacy of the hardship declaration, however illusory that avenue may be.  Upon request by motion, courts must hold a hearing to determine whether the hardship declared by the tenant is genuine. However, the burden is on the landlord to prove that the alleged hardship does not actually exist. To make matters more complex, the law specifically states that, during this hearing, if the court believes that the tenant may possibly qualify for Emergency Rental Assistance Program (ERAP), the tenant will be directed to apply for ERAP funds, which triggers yet another stay of the eviction proceeding until there is a determination of eligibility.  If the tenant is found to be ineligible, the Act is not clear whether the landlord will be able to proceed with the eviction.

Only time will tell how courts will ultimately treat residential evictions during this current Moratorium. Unfortunately, the immediate future is not looking bright for landlords who have not received rent since March 2020, or even prior to that. New York lawmakers have had ample time to come up with a real, meaningful, solution to this problem, and yet they continue to kick it further down the road, leaving local landlords with no means of recourse.

[1] However, the law does allow a hardship declaration to be challenged via a court hearing.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.  

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Kara M. Nelson is an associate concentrating in real estate and landlord/tenant matters.  She can be reached by phone at  845-764-9656 and by email.
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