Since the outset of the COVID-19 pandemic in New York, eviction proceedings have largely been on hold due to a series of executive orders from Governor Cuomo and administrative orders from Chief Administrative Judge Lawrence Marks. Per the latest guidance from Chief Judge Marks, residential eviction proceedings may resume in the normal course this week. Prior to that announcement, Governor Cuomo announced in Executive Order 202.66 that he was extending New York Tenant Safe Harbor Act, which provides certain additional defenses and protections to tenants who have suffered financial hardship as a result of COVID-19, through January 1, 2021. Although eviction matters (i.e., holdover and nonpayment proceedings) may resume as of earlier this week (October 12), landlords are precluded in those matters from seeking the ultimate remedy of eviction for all residential tenants who meet the criteria set forth in the Tenant Safe Harbor Act until January 1, 2021.

On September 21, 2020, Governor Cuomo announced an extension to the prohibition on commercial eviction proceedings through October 20, 2020. In response, there has been an increase in ejectment actions in New York State Supreme Court, as such actions are not subject to the moratorium because the text of the relevant executive orders applies only to summary proceedings in the Civil Court of the City of New York ("New York Civil Court").

While proceedings in residential and commercial evictions have recently begun or are set to resume within weeks, landlords seeking to avail themselves of summary proceedings should expect to face lengthy backlogs. Indeed, the Civil Court of the City of New York reported that there were approximately 200,000 eviction proceedings pending before March 17, 2020. See DRP 213 (Management of PrePandemic Evictions in the New York City Civil Court) at 1 (August 12, 2020.). Given the backlog and expected influx of new cases, landlords may no longer be able to rely on summary proceedings to quickly dispossess tenants, as summary proceedings will not be able to be processed as quickly as they were prior to COVID-19. Indeed, Chief Administrative Judge Marks expressly noted in his October 9, 2020 order and corresponding memo "that the scheduling, hearing and issuance of decisions in eviction matters will often require far lengthier time periods than anticipated in statutes and prevalent under preCOVID conditions."

Current State of Residential Eviction Proceedings. On March 20, 2020, Governor Cuomo first announced a 90-day moratorium on residential and commercial evictions through approximately June 20, 2020. On May 7, 2020, Governor Cuomo issued Executive Order 202.28 extending the moratorium for individuals or entities who suffered COVID-19-related financial hardship.

On June 30, 2020, Governor Cuomo enacted the Tenant Safe Harbor Act into law to issue protections relating to residential tenants. The Tenant Safe Harbor Act provides, among other things, that Courts are prohibited from issuing a warrant of eviction or judgment of possession against a residential tenant who has suffered financial hardship during the COVID-19-covered period. The Tenant Safe Harbor Act also provides that Tenants may raise financial hardship during the COVID-19-covered period as a defense in any summary proceeding.

On July 6, 2020, Governor Cuomo issued Executed Order 202.48 noting that the prior directives concerning evictions of residential tenants were superseded by the Tenant Safe Harbor Act.

On September 28, 2020, pursuant to Executive Order 202.66, Governor Cuomo extended the moratorium on COVID-related residential evictions as set forth in the Tenant Safe Harbor Act until January 1, 2021. Governor Cuomo also extended the protections to cover the execution or enforcement of such judgment or warrant to those where a judgment or warrant of eviction for a residential eviction was granted prior to March 7, 2020. Thus, Executive Order 202.66 bars the execution or enforcement of residential warrants of eviction or judgments of possession without regard to their date of issuance. It is important to note that Executive Order 202.66 represents an extension of the Tenant Safe Harbor Act in two important respects: (i) Executive Order 202.66 applies to "any residential tenant" where the Tenant Safe Harbor Act applies only to nonpayment proceedings and (ii) the Executive Order prohibits the "execution or enforcement" of judgments and warrants while the Tenant Safe Harbor Act prevents their issuance.

On October 9, Judge Marks issued a memorandum and attached Administrative Order 231/20 providing that effective October 12, all residential eviction matters (both nonpayment and holdover), without regard to the date of commencement, may resume and proceed in the normal course statewide, subject to certain conditions, among others:

  • Suspension of certain statutory time limits;
  • Once a petition has been filed and answered, the further hearing of an eviction proceeding remains subject to local court conditions and health/safety assessments for courthouse use;
  • Status conferences must be held for evictions commenced prior to March 17; and
  • Evictions of residential tenants who meet the criteria set forth in the Tenant Safe Harbor Act, as modified by Executive Order 202.66 (discussed above), are prohibited until January 1, 2021.

Adding to the web of potentially inconsistent New York statutes, executive orders, and administrative orders, the Center for Disease Control ("CDC") issued an order that temporarily halts residential evictions of covered persons for nonpayment of rent from September 4, 2020 through December 31, 2020. See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020). A "covered person" is defined to include any tenant, lessee, or resident of a residential property who provides to their landlord, the owner of the residential property, or other person with a legal right to pursue eviction or a possessory action, a declaration under penalty of perjury that: (1) the individual has used best efforts to obtain all available government assistance for rent or housing; (2) the individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return),(ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act; (3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses; (4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; and (5) an eviction would likely render the individual homeless--or force the individual to move into and live in close quarters in a new congregate or shared living setting--because the individual has no other available housing options. The authority of the CDC to issue such an order is the subject of proceedings in federal court.

Commercial Eviction Proceedings. Unlike residential evictions, there have been no legislative codifications of protections available to commercial tenants. Rather, commercial tenants have relied on Governor Cuomo's executive orders. Specifically, Executive Order 202.28 signed by Governor Cuomo on May 7, 2020 provided that "[t]here shall be no initiation of a proceeding or enforcement of an eviction of any...commercial tenant, for nonpayment of rent...rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID19 pandemic for a period of sixty days beginning on June 20, 2020." Executive Order 202.64, signed by Governor Cuomo on September 18, 2020, extended the restrictions put in place by Executive Order 202.28 through October 20, 2020.

Executive Order 202.28's restrictions have resulted in the increased filing of ejectment actions in New York State Supreme Court because the restrictions in Governor Cuomo's executive orders only apply to proceedings, and not actions. New York law has consistently recognized a difference between summary proceedings and Supreme Court actions, and thus, despite the executive order's seeming prohibition on commercial evictions, landlords have been able to pursue evictions through alternative means. Prior to the COVID-19 pandemic, the use of ejectment actions had largely been replaced by summary proceedings in New York Civil Court. Given the large backlog of cases and the likely influx of new cases in Civil Court, it is likely that the newfound popularity of the ejectment action will continue for the foreseeable future, as it likely offers more certainty in terms of timing than proceeding in New York Civil Court.