New York State Chief Administrative Judge Lawrence Marks has issued Administrative Order 121/20, which negatively impacts upon the ability of owners to commence non-payment and holdover proceedings upon the re-opening of the housing courts on June 22nd.
The restrictions contained in the Order are in addition to the restrictions on eviction proceedings that are contained in the federal Cares Act and Governor Andrew Cuomo’s executive orders. According to Judge Marks, “we remain concerned about the adverse public health consequences that may arise from a sudden high-volume influx of eviction matters... and necessitating in-court appearances.”
The first portion of the Order addresses technical requirements relating to the documents initiating housing court proceedings. The Order provides that the documents must be filed with the housing court using e-filing (which has not yet been implemented) or by mail. Further, petitions in commercial and residential eviction cases “for non-payment of rent or other grounds” must include two additional documents, one of which requires that the owner’s attorney “believes in good faith” that the proceeding is not precluded by federal or State restrictions (i.e., that the tenant is not COVID-19 impacted) and the other informs the tenant that the tenant may be eligible for an extension of time to respond due to the pandemic. Based upon the phrase “non-payment of rent or other grounds,” these requirements apply both to non-payment proceedings and holdover proceedings.
Most importantly, the second portion of Judge Marks’ order provides that once a new case is commenced, “further hearing of the case shall be stayed until such time” as the Governor’s executive orders expire. Executive Order 202.28, the order currently in effect relating to housing court proceedings, is due to expire on August 20, 2020. This means that newly-commenced cases will be stayed until that date. In the meantime, the only cases the housing court will address are cases commenced on or before March 16, 2020 in which both parties are represented by counsel; according to the order, those cases “shall be eligible for calendaring for virtual settlement conferences.”
The stay of new proceedings is both frustrating and disturbing. While the commencement of many cases is precluded until July 25th under the Cares Act and August 20th under the Governor’s Executive Order, other cases would have been eligible to be commenced on June 22nd. Judge Marks’ order not only discourages the commencement of new cases but, also, leaves open the question as to what, if anything, will transpire while new cases which are commenced are stayed.
Will those cases simply stagnate until August 20th and beyond? Will unrepresented tenants be provided with attorneys under the right to counsel program? Will new cases that are stayed be referred to the City Human Resource Administration (HRA) for “one-shot” payments? Will new cases with attorneys on both sides be calendared for virtual settlement conferences, which the order provides will happen for cases which were commenced on or before March 16th?
As of this point we do not know the answers to these and other questions relating to Judge Marks’ order. To view Judge Marks’ order, visit https://bit.ly/2YieHUG. We will keep you apprised of any further developments.