By Patrick Tyrrell

Law360 (May 13, 2020, 5:00 PM EDT )

Patrick Tyrrell

In a press briefing on May 7, Gov. Andrew Cuomo announced that he was extending[1] the statewide eviction moratorium for another 60 days. Many New York City tenant attorneys like myself breathed sighs of relief after this announcement. I believed that, at minimum, none of my clients could be evicted during a deadly and unprecedented pandemic.

But then I read the fine print. The governor's latest executive order[2] — handed down the same day as his press briefing — will not extend the eviction moratorium. In reality, it will dismantle it.

The current eviction moratorium was set in place by the governor's March 20 executive order.[3] It provides blanket protections for all residential and commercial tenants from eviction through June 18. There were no exceptions. 

By contrast, the May 7 executive order sharply restricts who will be protected after June 18. The latest order protects only tenants who fall behind on their rent and who are eligible for unemployment or are "otherwise facing financial hardship due to the COVID-19 pandemic." It is unclear what qualifies as financial hardship, who decides it or what happens if a landlord tries to evict a tenant in defiance of the order.

What is clear is that Cuomo's latest order strips countless tenants across the state from eviction protections and creates major loopholes for landlords to exploit. Cuomo promised that nothing will happen to renters who may face eviction during the COVID-19 pandemic until Aug. 20.

However, the latest order will not stop landlords from enforcing existing eviction warrants issued against tenants prior to the pandemic. This could lead to a new wave of evictions right after June 18. The order also will not bar landlords from starting or enforcing holdover cases. Holdovers are eviction cases for grounds other than nonpayment of rent. Landlords could use holdovers as subterfuge to demand rent during the pandemic.

Worse yet, the latest order completely shifts the burden on tenants to prove how they qualify for these limited protections. This burden falls particularly hard on New York's community of unauthorized immigrants, who cannot qualify for unemployment benefits.

Under the latest order, there's nothing stopping a landlord from suing any tenant who falls behind on rent and forcing the tenant to divulge sensitive, confidential information in court to try to qualify for eviction protection. This is especially troubling given that some New York City landlords have been accused of harassing their tenants based on immigration status.[4]

Cuomo implored us to remember our principles. The governor rightly stated that we should never ask ourselves "how many lives are you willing to lose to reopen the economy?"[5] The current eviction moratorium protects lives by allowing tenants to abide by shelter-in-place and social distancing orders, rather than being forced into the shelter system — where COVID-19 infections run rampant.

Cuomo's latest order will end the eviction moratorium and replace it with weak protections which landlords can easily skirt. New York City landlords have already demonstrated that nothing short of a complete ban on eviction filings will stop them from pursuing cases against tenants during the pandemic.[6]

Now more than ever, the affordable housing crisis is a public health crisis. It does us absolutely no good to force people into the streets or into the shelter system during a pandemic. I do not know if Cuomo intended to weaken tenant protections during the crisis despite what he promised during his May 7 press briefing, or if this was just some sort of oversight.

Regardless, as a tenant attorney and a New Yorker, I can say with certainty that weakened tenant protections will inevitably lead to evictions and undermine public health during a global pandemic.

New York tenants deserve real protections during this crisis. Extending a true eviction moratorium, without exceptions, is the first step. Additionally, we need to pass legislation providing direct rent relief to tenants,[7] as well as tax and mortgage relief to small landlords.[8] In New York City, we need a fully funded right-to-counsel program to provide tenants free legal assistance once housing court inevitably reopens.

Finally, expanding just-cause eviction prohibitions statewide, as proposed by Sen. Julia Salazar, D-Bushwick,[9] would provide stability and long-lasting protections for tenants after the state fully reopens.

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Patrick Tyrrell is a tenant attorney in New York City.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.youtube.com/watch?v=QW3_MhlHeSM&feature=youtu.be&t=629.

[2] https://www.governor.ny.gov/news/no-20228-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[3] https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[4] https://therealdeal.com/2017/06/12/lawsuit-alleges-zara-realty-threatened-undocumented-tenants-with-feds/.

[5] https://www.cnbc.com/2020/05/07/ny-gov-cuomo-says-he-wont-sacrifice-human-lives-to-reopen-the-economy-the-argument-is-absurd.html.

[6] https://www.law360.com/newyork/articles/1254495/ny-landlords-can-file-cases-despite-eviction-moratorium.

[7] https://www.law360.com/articles/1256418/ny-sen-introduces-covid-19-rent-mortgage-suspension-bill.

[8] https://www.law360.com/articles/1262166/ny-bills-seek-property-tax-relief-amid-covid-19-pandemic.

[9] https://www.nysenate.gov/legislation/bills/2019/s2892.

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