The Landlord-Tenant (Eviction) Courts ARE Open and Operating
There is a misconception that the New York Landlord-Tenant (Eviction) Courts are closed and an eviction case cannot be commenced (or if previously commenced, cannot move forward). This is certainly not the case.
The Landlord-Tenant (Eviction) Courts at the Nassau County District Court and the Suffolk County District Courts (as well as the Courts in the City of Glen Cove, City of Long Beach and East End Towns [Southampton, East Hampton], Westchester County, New York City, etc) are open and operating.
As has been the case since the start of the Pandemic, there is no prohibition against a Landlord issuing a required predicate notice to a Tenant (e.g. 14 Day Notice, 30, 60, or 90 Day Notice). The only caveat is that a Covid-19 Hardship Declaration Form must accompany any notice served on a Tenant.
If the Tenant does not return the Covid-19 Hardship Declaration Form prior to the time the Landlord commences the eviction case, then upon the submission of an Affidavit or Affirmation in support of the filing, the case is accepted by the Clerk and is processed in its normal course.
However, even if the Tenant does return the Covid-19 Hardship Declaration prior to the filing of the case, a Landlord is not necessarily foreclosed from filing the case until after January 15, 2022 (or any further extension of the “moratorium”).
Under a September 2021 revision to the Emergency Eviction and Foreclosure Prevention Act (“EEFPA”), Landlords have the right to challenge their Tenants Covid-19 Hardship Declaration Forms (even when commencing a new action).
In these cases, at the time of filing, if the Landlord has a “good faith” belief that the Tenant has not experienced the alleged hardship and sets forth a factual basis for such belief at the time of filing, the Clerk will accept the eviction matter for filing and calendaring (without having to wait for the expiration of the so-called “moratorium”). When the case appears before the Court, the Court will conduct a “Hardship Hearing” to determine whether the alleged hardship is valid.
Over the past few months, our office has been successful in defeating claims of alleged “Hardship.”
Further, even in existing cases where a Tenant does file a Covid-19 Hardship Declaration Form, a Landlord may make a motion in the pending case asking that the Court conduct a “Hardship Hearing” to determine whether there is a bonafide hardship which warrants a stay of the proceeding until such time that the so-called “moratorium” is lifted.
If the Court determines after a hearing that the alleged hardship claim is valid then the Tenant will be afforded the protections under the EEFPA until January 15, 2022 (or such other date if the EEFPA is extended). If the Court determines after a hearing that the Tenant’s claim of hardship is invalid, then the eviction proceeding will proceed in its normal course for the court to make an ultimate determination on the merits. If the Court finds for the Landlord, the Courts have been issuing Judgments of Possession and Warrants of Eviction and in many instances the Sheriff/Marshal has been executing on such Warrants.
There are also other mechanisms which allow a Landlord to move forward with an eviction proceeding in the Nassau County District Court, Suffolk County District Court as well as other courts throughout Nassau County, Suffolk County, Westchester County and New York City notwithstanding the submission of a Hardship Declaration.
For example, if a Landlord alleges that the Tenant (or other occupants) are engaging in “ongoing and persistent” behavior which substantially interferes with the rights of others at or around a Premises, a Tenant or occupant is engaging in behavior which causes damage to a Premises or is otherwise engaging in conduct which creates a “significant safety hazard”, a Landlord may proceed with an eviction case filed under the “nuisance exception.”
Like hardship challenges, over the past few months we have been successful in bringing “nuisance” proceedings in which the Court has found “nuisance behavior” and issued a Judgment of Possession and Warrant of Eviction notwithstanding the EEFPA. Sheriffs have executed a number of evictions for our clients over the past few months as a result of these findings.
To summarize, whether you are a commercial or residential Landlord or a Tenant in New York, despite what the media may portray, the eviction moratorium is not a blanket moratorium. Each case is different and cases can be filed in many instances.