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Law360 (June 21, 2021, 2:11 PM EDT ) Several New York landlords and their trade group are continuing to seek an emergency order blocking enforcement of a state law preventing most coronavirus pandemic-era residential evictions, saying a lower court gave too much deference to state lawmakers.
There is no longer a COVID-19 health emergency in New York, the landlords and Rent Stabilization Association said in a motion Friday to the Second Circuit for an injunction and expedited appeal. Now that Gov. Andrew Cuomo has lifted most pandemic restrictions across the state, the landlords' due process claims should be taken seriously.
"Whatever deference may have been appropriate in the early days of the pandemic can no longer be justified," the motion said.
The filing came on the heels of a June 11 order from U.S. District Judge Gary R. Brown in favor of New York Chief Administrative Judge Lawrence K. Marks denying the landlords' motion to block enforcement of the COVID-19 Emergency Eviction and Foreclosure Prevention Act, or CEEFPA, currently in place through Aug. 31.
In his order, Judge Brown cited the 1905 Supreme Court decision in Jacobson v. Massachusetts
, which upheld a state law requiring smallpox vaccination, stating that it is not for the court to "second-guess" the New York State Legislature's May decision to extend CEEFPA.That ignored more recent decisions qualifying Jacobson, the landlords said Friday. Additionally, they said, the lower court "failed to grapple with the facts on the ground," including Cuomo's recent announcement that more than 70% of adult New Yorkers have received at least one vaccine shot.
The "undisputed evidence demonstrates that this crisis is now behind us in New York," the landlords claimed. "Courts, bars, theaters, stadiums and restaurants are permitted to operate normally, but property owners cannot pursue their remedies to reclaim their own properties from nonpaying or holdover tenants."
An emergency injunction is merited because each landlord plaintiff "desperately needs to immediately reclaim their property to live in it, rent it out or sell it," according to the memorandum.
In their May 6 complaint, the landlords and RSA claimed CEEFPA limits their ability to file or execute evictions, in violation of constitutional due process rights. They targeted Judge Marks, saying he is responsible for enforcing the law.
Counsel for both parties declined to comment Monday.
But in a letter submitted Monday by Marks' counsel, Assistant Solicitor General Linda Fang pushed back on the landlords' request for a decision on the injunction by this Friday, June 25.
"Plaintiffs do not identify any basis for this June 25 deadline or explain why it is necessary for this court to resolve their emergency motion within a week's time — especially since the relief they are requesting is that the court enjoin enforcement of a statute that has been in effect for almost six months," Fang wrote.
The landlords are represented by Randy M. Mastro and Akiva Shapiro of Gibson Dunn & Crutcher LLP.
Marks is represented by Assistant Solicitor General Linda Fang, Judith Naomi Vale and Steven Wu of the New York State Office of the Attorney General.
The case is Chrysafis et al. v. Marks et al., case number 21-1493, in the U.S. Court of Appeals for the Second Circuit.
--Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
