Landlords' attorneys are welcoming the June 30 directive from Judge Carolyn Walker-Diallo, saying it heralds a return to more efficient pre-pandemic court procedure. According to the guidance, their New York City clients no longer need to request a special court date before seeking a quick win in a nonpayment eviction case filed on or after Jan. 15.
Landlord-side attorneys are hailing a New York City administrative judge's June 30 decision to lift a buffer that delayed eviction default judgments as a return to more efficient, pre-pandemic court procedures. (iStock.com/BrianAJackson)
"It's the next step back to the normal operation of the court … and an indication that the court thinks that we are past the crisis period," Deborah E. Riegel of Rosenberg & Estis PC, who represents property owners, said.
Defaults will "be processed on a normal basis by the clerks, which means the judges don't have to review all of them," Riegel added. "The ones that judges do have to look at will start to move faster."
It was not immediately clear how many default motions landlords sought across New York City this year prior to June 30. Office of Court Administration spokesperson Lucian Chalfen said Wednesday that data would not be available until next week.
Lisa Faham-Selzer of Kucker Marino Winiarsky & Bittens LLP told Law360 that she had been filing about 25 default motions per month under prior guidance.
"We were filing a lot of these motions," she said, adding that they often led to "multiple adjournments" that prolonged the default process.
According to Judge Walker-Diallo's new directive, known as DRP-223, a motion is still required before a default judgment or warrant can be issued for some older cases — ones filed before Jan. 15 in which the tenant does not have an attorney.
When a landlord serves tenants with a nonpayment petition, they have an initial 10-day window to contact the court. Doing so locks in their first appearance and kicks off the standard, monthslong court process.
A default comes into play if the tenant misses that deadline, clearing the way for a city marshal to post an eviction warrant on the tenant's door on an accelerated timeline.
The scenario was not uncommon prior to the pandemic. More than 23,000 default judgments were issued across the five boroughs in 2019, according to data supplied by the Office of Court Administration. But defaults essentially dried up in March 2020.
Tenants who default are not without recourse. Once a tenant receives a warrant at their apartment, they can file a so-called order to show cause to have their case reopened.
"The whole default process is to move the case along," David Skaller, co-head of litigation at Belkin Burden Goldman LLP, who represents property owners, said. "You can't just let a case languish. There has to be a consequence for not showing up."
"Most landlords just want to get paid," Riegel of Rosenberg & Estis, said. "But if you're not going to get paid you want the apartment back. Generally speaking, the issuance of the warrant is not the end, but the service of the warrant is what forces the tenant to come to court and enable you to settle and get some of the back rent."
But attorneys who represent tenants say that marshal's notices can be alarming and that the additional notice requirement rescinded by DRP-223 had helped some tenants match with a lawyer.
"It gave people one more bite at the apple,"said Nakeeb Siddique, director of the housing office at the Legal Aid Society's Brooklyn Neighborhood Office.
In his own experience, Siddique added, most tenants have been responding to initial court papers within the 10-day window and bypassing the default risk.
"Most cases it's a lot like it was before the pandemic — people get service, and then they go in person to file an answer, and they get a court date within a month," Siddique said.
But Patrick Tyrrell, a staff attorney at Mobilization for Justice, said he worries the new guidance will compel more landlords to seek defaults.
"My concern is there's been a lot of extra procedural requirements and additional due process, and perhaps those safeguards have meant that landlords are less likely to move for a default because it's extra work," he said. "Now it's a really nominal effort."
New eviction filings remain below pre-pandemic levels. There have been 46,929 eviction cases filed in New York City this year as of July 1, according to a database maintained by the state court system.
That's a 131% increase from the 20,295 cases filed in the first six months of 2021, per state data, but still well below the 100,374 filed in the first six months of 2019.
Yet legal service providers remain concerned about their ability to keep up with demand for free legal representation. "I think right now attorney capacity is my No. 1 concern," Tyrrell said. "The sheer volume of referrals has been really difficult to deal with."
In a statement regarding the implementation of DRP-223, Chalfen, the court's spokesperson, differentiated more recent eviction cases from those filed before Jan. 15, when New York's primary pandemic anti-eviction law was still in effect.
Cases "commenced after the [state] legislature determined that a moratorium was no longer necessary are in a different posture than cases that may have been stayed beforehand," Chalfen said.
He also listed existing notification requirements for all tenants facing eviction, such as a rule in place since the 1990s that the court send a postcard notice.
In addition to instating a new default judgment procedure, DRP-223 rescinds two pandemic-era directives, DRP-217 and DRP-221, that required special motion practice before landlords could act on possessory judgments granted before the pandemic or up through Sept. 2.
Chalfen did not immediately comment on the decision to rescind those directives.
Meanwhile, tenants sued for eviction in New York can still file for the state-run Emergency Rental Assistance Program, which pauses most eviction cases while applications are being processed.
The program is a stress point for landlords, who say it is too slow at processing applications and issuing payments, their attorneys said.
"ERAP is really, really a thorn in our side," Faham-Selzer of Kucker Marino said. Yet the new default guidance is still welcome. "Any progress is good."
--Editing by Gemma Horowitz.
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