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  • Writer's pictureAndrew M. Washburn


Updated: Jul 28, 2023

Upstate NY Landlords Continue the Fight Against NY’s Eviction Moratorium

On November 8, 2021, thirty-seven (37) Erie County landlords filed a lawsuit in New York Supreme Court (David Arakelian, et al v. Lawrence K. Marks) alleging that the state’s ongoing residential eviction moratorium is unconstitutional. The lawsuit centers around the argument that New York’s anti-eviction laws violate due process rights by depriving landlords of the meaningful opportunity to challenge or verify the hardship declarations of tenants and marks the latest challenge against the state’s eviction moratorium.

In response to the continued economic and societal disruption caused by the COVID-19 pandemic, New York State enacted COVID-19 Emergency Eviction and Foreclosure Prevention Act (“CEEFPA”) to provide continued aid to the thousands of New York State homeowners and tenants experiencing pandemic-related hardships. Under CEEFPA, tenants were able to stay the enforcement of any residential or commercial evictions by submitting a Tenant Hardship Declaration Form indicating that (i) they were experiencing COVID-19-related financial hardship or (ii) moving would pose a significant health risk because of a high-risk household member.

Through multiple extensions, CEEFPA was set to protect tenants experiencing such a hardship from the threat of eviction through August 31, 2021. However, prior to its expiration/subsequent extension, the United States Supreme Court invalidated part of CEEFPA on August 12, 2021 by ruling that the law denied landlords their constitutional right to a hearing to challenge the Tenant Hardship Declaration Form. (See Chrysafis v. Marks, 141 S. Ct. 2482, 2482 (2021)). In so doing, the Supreme Court indicated that the law’s violation of the Due Process Clause directly contravened with “the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case.’” Id.

In response to the Supreme Court’s ruling, the New York State Legislature quickly passed New York Laws Chapter 417 (State Senate Bill S50001), Part C, Subpart A (the “Act”) on September 2, 2021. The Act extended the state’s eviction moratorium through January 15, 2022, and in an attempt to remedy the due process issues of its prior iteration, permitted landlords to request hearings to challenge the Tenant Hardship Declaration Forms. To make such a challenge, however, a landlord must swear ‘under penalty of perjury' that they have a ‘good faith belief' that the tenant is not experiencing the claimed health- or financial hardship.

In their current suit, the Erie County landlords claim that the Legislature’s purported fix to the law is “illusory”, as “[l]andlords almost never have access to the information necessary to make such an averment.” As such, plaintiffs claim that despite the changes implemented by the Act they are still generally precluded “from entering court to seek a judicial determination of the validity of a hardship claim in violation of the Due Process Clause.” They also argue that the Act’s extension of the moratorium is untimely as “the circumstances of concern during the early stages of the coronavirus pandemic that led to the initial moratorium were no longer present.”

Whether or not the landlord’s arguments will hold any weight in the New York Supreme Court is yet to be seen. However, it is clear that landlords across the state are growing increasingly frustrated by the moratorium and will continue to look for ways to challenge it.

If you have any questions regarding the issues discussed above or if you have any other questions related to Real Estate Law, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Andrew M. Washburn, the author of this piece, here or at (585) 258-2885.

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