By Emma Whitford

Law360 (October 16, 2020, 12:47 PM EDT ) New guidance from New York's court system has toppled some of the final barriers to residential evictions during the coronavirus pandemic, although how quickly cases proceed will depend on factors like case backlogs and tenants' access to counsel, lawyers say.

Published shortly after Gov. Andrew Cuomo issued an order aiming to block many evictions through year's end, Chief Administrative Judge Lawrence Marks' Oct. 12 order and accompanying memo state plainly that all eviction cases can now proceed, lifting a monthslong suspension of cases filed since June.

"All residential eviction matters — nonpayment and holdover, without regard to the date of commencement — may resume statewide, with certain important caveats," the memo stated.

These caveats include a thicket of eviction defenses, such as a partial eviction moratorium issued by the Centers for Disease Control and Prevention through December, and protections instituted by the state Legislature and Cuomo that can prevent evictions for unpaid rent so long as a tenant can prove they have experienced financial hardship.

Tenants also cannot default for failure to answer a nonpayment case filed against them. But that protection could fall away Nov. 3, Judge Marks said, with the expiration of an executive order that has suspended procedural deadlines.

Tenant attorneys and advocates told Law360 that Judge Marks' latest guidance puts the onus on tenants to assert defenses, and that their success will depend largely on access to counsel, which varies widely across the state.

"If you have an attorney, there's an opportunity to be OK," said Rebecca Garrard, housing campaign manager for Citizen Action of New York.

Outside of New York City, said Safety Net Project attorney Marika Dias, most tenants do not. The available defenses "are very complicated and are going to be difficult for tenants to argue," she said.

Case backlogs also vary across jurisdictions and are likely to determine how soon tenants appear before a judge. Pandemic restrictions on courthouse foot traffic are expected to compound delays.

"We anticipate that the scheduling, hearing and issuance of decisions in eviction matters will often require far lengthier time periods than anticipated ... under pre-COVID conditions," Judge Marks wrote in his memo.

Landlord attorneys in New York City say they are not holding their breath. The backlog in New York City is believed to be large, though the Office of Court Administration recently walked back a 200,000 figure it touted over the summer.

"The backlog is certainly the elephant in the room," said Mitchell Posilkin, general counsel for the Rent Stabilization Association, a landlord trade group. "Everything that is even moving is moving at a snail's pace. There are an insufficient number of courtrooms with safety features."

"Judge Marks can issue as many orders as he wants, but at the end of the day if cases don't move, then owners aren't having their day in court," he said.

Michael Rosenthal of Hertz Cherson & Rosenthal PC, who represents landlords in Brooklyn, predicted a "long time … before they start touching cases filed mid-June forward."

But Jaime Cain, partner with Boylan Code LLP in Rochester, New York, said she is hopeful about Judge Marks' latest order. Pre-pandemic backlogs have been less of an issue in her region, and she now sees a path forward to resolve more recent tenant disputes.

Landlords can start taking tenants to court to determine "who's been COVID-affected versus who hasn't paid [rent] for a number of reasons, whether miseducation or not wanting to pay," Cain said.

On the tenant side, attorneys outside of New York City said they're concerned evictions will proceed rapidly. The City-Wide Tenant Union of Rochester has identified 27 active eviction warrants in Rochester as of this week, primarily stemming from pre-pandemic matters, according to member Allie Dentinger.

Marcie Kobak, director of litigation for Legal Services of the Hudson Valley, said that roughly 10% of tenants have access to an attorney in her region. The largest court she works in is in Yonkers, a city just north of New York City, where old and new eviction cases are already moving forward.

"We're talking between 100 and 200 appearances by pro-se litigants any given week in Yonkers," Kobak said. "A tenant who has a defense, but is lacking access to counsel, isn't able to raise it."

In New York City, by contrast, landlords must participate in special hearings intended to match each tenant with a lawyer before any pre-pandemic eviction warrant can be enforced. About 2,500 are currently being scheduled and represent an early priority before judges move on to cases filed since the pandemic began.

But there have been glitches. In the first few weeks, about a third of tenants have missed their first appearance, according to the Office of Court Administration, primarily in the Bronx. Miss a second time and they default.

"We are trying to find them," said Ellen Davidson, a staff attorney with the Legal Aid Society. "We are writing letters. We are looking for these tenants and doing everything possible to make contact. This is too important."

--Editing by Orlando Lorenzo.

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