January 17, 2022

As we approach year three of the COVID-19 pandemic, a dramatic change has occurred for renters and landlords in New York State.

The state legislature declined to further extend the eviction moratorium that has been in place since 2020. Under the moratorium, outside of a few exceptions, landlords were unable to evict tenants if the tenant claimed a COVID-19 hardship. While the moratorium provided a safeguard for renters, it proved to be a hardship for many landlords who had to maintain properties that they were, in many cases, receiving no rent for.

The moratorium was intended as a temporary emergency response to the pandemic, and with it no longer in place, several questions remain, including:

  1. Can evictions resume immediately?
  2. What happens to the back rent tenants did not pay?
  3. Will the courts be overwhelmed with eviction cases, and if so, will that delay the processing of eviction proceedings?
  4. Is there any chance the moratorium will be reinstated?

Can evictions resume immediately?
The short answer is yes. Filing of the paperwork to begin an eviction proceeding can resume immediately. The Chief Judge of the Administrative Courts issued an order this week confirming such, saying:

All residential and commercial eviction matters, both nonpayment and holdover, may proceed in the normal course. All residential eviction matters shall proceed pursuant to Administrative Order AO/245/21 and remain subject to the conference requirements as set forth therein.

The Administrative Order further addressed protections afforded through the COVID-19 Emergency Rental Assistance Program:

Eviction protections provided by the COVID-19 Emergency Rental Assistant Program (ERAP) under Part BB, Subpart A, §8 of Chapter 56 of the Laws of 2021, as modified by L. 2021, c. 417, remain fully in effect. Eviction matters where there is a pending ERAP application shall be stayed until a final determination of eligibility for rental assistance is issued by the Office of Temporary and Disability Assistance (OTDA), including appeals. Landlords shall continue to submit notice of a known ERAP application to the court where the eviction proceeding is pending in accordance with Administrative Order AO/244/21

One note for landlords: The Administrative Judge reiterated that tenants engaging in nuisance behavior and/or property damage are not protected by ERAP:

The protections provided by ERAP shall not apply if a tenant intentionally causes damage
to the property or persistently and unreasonably engages in objectionable or nuisance
behavior. If the court has awarded a judgment against such tenant prior to September
2, 2021, on the basis of such objectionable or nuisance behavior, the court shall hold a
hearing to determine whether the tenant intentionally caused significant damage to
the property or persistently and unreasonably engaged in such behavior. The hearing
is to determine whether the tenant is continuing the nuisance behavior.

However, that doesn’t mean landlords should immediately start pursuing new tenants. There can be a big difference between filing for an eviction, getting a date in court, and the actual removal of tenants through an eviction warrant.  

What happens to the back rent tenants did not pay?
As of now, any unpaid rent has not been forgiven, the moratorium prohibited (most) evictions from occurring, it did not forgive back rent. While there is talk of a rent forgiveness program, nothing has materialized. In practice, landlords can, and should consider filing suit to recover unpaid rent.   

Will the courts be overwhelmed with eviction cases, and if so, will that delay eviction proceedings?
Absolutely. That speaks to the first question and what we expect to be a lengthy backlog in processing new filings, which could delay evictions for an extended period of time.

Is there any chance the moratorium will be reinstated?
Tenant advocacy groups are putting pressure on both the governor and the legislature to reinstate the eviction moratorium, as well as to offer some comprehensive rent forgiveness/relief program. At present, the money is simply not there. In fact, following a lawsuit, the state was forced to begin accepting applications once again for the Emergency Rental Assistance Program (ERAP). The program was closed earlier because it is out of funding. As of January 11, residents can apply to the program, although they receive a message that reads, in part:

Due to a court order, applications for ERAP will be accepted statewide January 11, 2022, at 10 p.m. There is currently no federal funding available to provide assistance in most areas of the State. Therefore, applications will only be reviewed and considered for funding if additional funds become available.

The expiration of the moratorium seemingly caught many people on both sides of the issue off guard. It is too early to know how these questions will be addressed, but our real estate team is staying on top of the developments. There will be an update to this blog as soon as we have additional information. Until then, it appears the state is pushing for additional federal funding as a stopgap solution to the housing crisis.

Nicholas J. Ingrassia is an attorney and shareholder of Gross Shuman P.C. He concentrates his law practice in the areas of Real Estate & Development, Banking & Finance, and Business & Corporate Law. Mr. Ingrassia also has extensive experience assisting clients with Estate Planning & Administration, and Canada-U. S. Cross Border legal issues. He is admitted to practice in New York State and as a Foreign Legal Consultant in Ontario, Canada. He can be reached at 716.854.4300 ext. 285 or [email protected].

John K. Rottaris concentrates his practice in the areas of commercial and business litigation, creditors’ rights, commercial collections, landlord-tenant law, bankruptcy law and tax certiorari. He also represents manufacturers and manufacturers’ sales representatives in commission and contract disputes. He can be reached at 716.854.4300 ext. 206 or [email protected].