Chief judge presses to resume eviction cases despite health and due process concerns

Editor’s note: This information was accurate as of July 28, but many details, including whether limits on evictions are still in effect, may have changed. For updates, contact Met Council’s hotline 212-979-0611

As state Chief Judge Janet De Fiore presses to reopen New York City Housing Court for eviction cases, tenants, organizers, and legal service providers and their unions have been pushing back. In-person court proceedings continue to pose significant risks of spreading the COVID-19 virus, and attempts to hold complex hearings by remote video appearances present insurmountable practical and due-process problems.

What will happen next is far from certain. Housing Court has been closed for public-health reasons since mid-March, except for emergency cases such as dangerous conditions or illegal lockouts. All other pending cases were put on hold, and no new cases could be brought. Pending evictions were also suspended in several stages by Gov. Andrew Cuomo, the courts, and in some cases by the federal CARES Act.

However, under the most recent orders from Gov. Cuomo and the courts, marshals can start scheduling evictions after August 5, if certain conditions are met, and courts can issue new warrants (the legal paper that allows a marshal to evict a tenant). Landlords were given permission, starting June 20, to start new cases against tenants, but they have to mail in the papers to the court rather than filing in person. Tenants can to wait to respond to those papers because there will be no default judgments (eviction rulings against people who did not show up).

Currently, the Housing Courts are not generally open to the public in New York City for in-person activities. Most hearings are by Skype or phone, and the only eviction cases that are moving forward are those that were started before the pandemic and both the landlord and the tenant have lawyers.

The state court system, under Judge DiFiore’s direction, is anxious to reopen for business. For Housing Court, that business is rent collection and eviction. There has been resistance to the reopening efforts, as tenant-movement activists have pointed out the insanity of evicting a family during a pandemic. There is simply no safe way to evict people, as homeless shelters are not safe, looking for housing exposes tenants to infection, and most tenants still have decreased incomes. The prognosis for recovery is not as promising as was believed early in the epidemic: There is no evidence yet that New York’s economy is bouncing back any time soon.

Where we started

To protect tenants and court employees during the pandemic, the governor and the state courts instituted a moratorium on evictions in March. By the third week of March, the city’s Housing Courts had closed to all but emergency cases. Each borough kept it open with a skeleton staff consisting of one judge, a few clerks, and court officers. From April to June, Housing Court hearings were in centralized in buildings that also housed other emergency civil cases, while two buildings used in normal times (1118 Grand Concourse in the Bronx and 141 Livingston Street in Brooklyn) were shuttered. The judges could not issue judgments or warrants, but could order landlords to make emergency repairs or to readmit illegally lockedout tenants. In June, the courts gradually expanded operations. Changes have been instituted through executive orders from the governor and through administrative orders and directives issued by the state Office of Court Administration. These have been dropped onto the court system’s Website with no public discussion or warning: Advocates have had to huddle over each one to try to parse the meaning and interpret the current status of the moratorium.

The CARES Act has stronger protections against eviction for tenants in public housing, receiving Section 8 rent subsidies, or living in in other forms of federally assisted housing, but those protections expired in late July. The House has passed a bill extending them, but the Senate has not.

An estimated 1.1 million tenant households in New York State lost income over the past four months due to the pandemic. New York University’s Furman Center estimates that about a third of those households have not received unemployment or other benefits to close the gap. Many did not qualify because they received too much income or were unable to prove their prior work history, and others were ineligible because of their immigration status. For those receiving unemployment benefits, the July 31 expiration of the federal $600 per week supplement enacted in March by the CARES Act means hundreds of thousands more people will be unable to pay their rent.

The Tenant Safe Harbor Act, which Gov. Cuomo signed at the end of June, offers tenants some limited protections from eviction. If tenants can prove they lost income due to the epidemic, landlords can still sue them in Housing Court to collect rent they didn’t pay between March 7th and the end of the emergency, but cannot get a “possessory judgment” entitling them to evict the tenant for nonpayment.

The law, however, does not protect tenants in holdover cases (cases brought primarily to recover apartments but not unpaid rent), rent owed before the pandemic, and tenants who cannot prove that their lack of income was related to the pandemic. Landlords of apartments that aren’t rent-regulated (many in the city, and most in the rest of the state) will presumably bring holdovers instead of nonpayment cases against tenants who owe rent. Undocumented immigrants who work for cash off the books and those in informal work situations, such as child care, will have difficulty proving that they lost income and that it was COVID-connected.

From July 16 through August 6, the state was taking applications for COVID Rent Relief, a short-term subsidy to tenants who were already paying more than 30 percent of their income for rent in February 2020. If they lost income during the crisis and were thus spending a higher percentage on rent, the state, using CARES Act funds, would cover the difference.

The answer?

The national Cancel Rent movement is calling on the state and federal governments to enact legislation that would release tenants from the obligation to pay rent during the health crisis. In New York, a bill recently introduced in the Legislature would create a fund to help landlords harmed by not collecting rent, rather than forcing tenants to prove they were affected by COVID-19. The city public school system is planning to reopen on a modified schedule that allows a few kids to go in for a few days a week, which means millions of adults will not be able to return to work, even assuming the jobs were there.

On the health front, The Right to Counsel NYC Coalition calls for keeping the courts closed until the pandemic ends. Anyone who visited the Brooklyn or Bronx Housing Courts before March 17 will understand this: Close to 2,000 people per day passed through them. Social distancing would be impossible to achieve in any of the city’s court buildings. The virus threatens everyone who goes to court, whether tenants, attorneys, landlords, or court staff — many who became ill from the inevitable close contact prior to the courts’ closure.

What tenants can do now

The city is trying to match all tenants facing eviction with lawyers. Thanks to the tenant movement, the Right to Counsel law means that the city now has a large and robust legal services program that offers representation for tenants facing eviction.

If your landlord started an eviction case against you before March 17, try to get a lawyer. You can call 311 or Housing Court Answers (212-962- 4795) for a referral. Your case could move forward, but there are no evictions as long as the moratorium remains in effect. The marshals will have to serve new Notices of Eviction. They are not supposed to start these yet, but be sure to call right away if you get one.

If you recently received court papers, you should also try to get a lawyer but right now there is no urgency. If you were unable to pay rent due to COVID, try to collect papers proving that. You can apply for the COVID Rent Relief program, a “one-shot deal” emergency grant from the city Human Resources Administration, and to private groups that help pay back rent. Call Housing Court Answers for guidance. If you have been illegally locked out, you can file a case against the person who locked you out right away. You can do this remotely, without going to Housing Court. Call Housing Court Answers for help.

If you have emergency housing conditions (no hot water, no running water, no working toilet, threats and harassment), you can also file a case right away. Be sure to call 311 to report the conditions and call the landlord. If no repairs result, call Housing Court Answers.

Jenny Laurie, formerly head of Met Council, is executive director of Housing Court Answers.