By Emma Whitford

Law360 (August 17, 2021, 8:01 PM EDT) -- As New Yorkers grapple with the implications of a recent U.S. Supreme Court opinion blocking a key provision of the state's pandemic anti-eviction law, a court memorandum released Tuesday is beginning to shed light on how cases will proceed.

Judges will be expected to consider a thicket of state and federal eviction defenses as cases are restored to court calendars across the state, according to a memo interpreting the high court decision from New York Chief Administrative Judge Lawrence Marks. A tenant's risk of eviction in the near term will depend on factors that include when a case was filed.

Courts must "determine if a proceeding continues to be stayed pursuant to existing state statutes and federal moratoria," Judge Marks wrote. 

The memo follows the Supreme Court's Aug. 12 opinion granting an emergency application by New York landlords, who had sought to block Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act, or CEEFPA, shortly before it was poised to expire on Aug. 31. 

Under CEEFPA, most tenants were able to fill out a special form attesting to their pandemic-related hardship in order to prevent an eviction case from proceeding against them. The form violated landlords' due process, according to the unsigned Supreme Court opinion.

Lisa Faham-Selzer of Kucker Marino Winiarsky & Bittens LLP, a landlord attorney, said Judge Marks' memo was welcome news.

"This is good. This is exciting. Because things are starting to run as they used to," she told Law360.

Among the possible defenses tenants can still raise against eviction is the Tenant Safe Harbor Act, a state law enacted in 2020 that says tenants cannot be evicted for rent arrears accrued during the pandemic, so long as they can demonstrate financial hardship.

Tenants with pending applications for federal rent relief through the state's $2.2 billion Emergency Rental Assistance Program are also protected, Judge Marks said.

Additionally, tenants may qualify for protection under a U.S. Centers for Disease Control and Prevention order effective through Oct. 3 in counties with high COVID-19 transmission rates.

"Just being able to file a lawsuit now and getting in line to be heard is a step in the right direction," said Michael Pensabene, a landlord attorney with Rosenberg & Estis PC. "It's not like you go to court and get evicted immediately. That's far from what actually happens."

But tenant lawyers say they fear renters will be caught off guard as certain court procedures are restored, such as those surrounding the issuance of default judgments.

In New York City, tenants who are sued for nonpayment of rent typically have a 10-day window to submit an answer to the court in order to lock in the first court date and prevent a default judgment and potentially expedited eviction. CEEFPA provided a temporary buffer, requiring a special hearing before any default judgment could be granted.

Eviction warrants issued before the pandemic are subject to a status conference before the landlord can act on them, according to Judge Marks' memo. But tenant attorneys fear warrants could follow swiftly from defaults in newer cases.

"My issue is the court is removing all of these procedural protections without any clear notice to tenants," said Patrick Tyrrell, a tenant attorney with Mobilization for Justice. Tenants "may still think they're protected by the hardship declaration, but now they are actually at risk of default or receiving a live warrant without any additional notice."

In remarks to Law360, courts spokesperson Lucian Chalfen said the courts are "fully open" and that tenants can submit answers by phone, as well as in person, to avoid a default.

This raises additional concerns about courthouse safety as the pandemic continues, said Ellen Davidson of the Legal Aid Society. "It doesn't seem like the court has thought about any of this. And if they have, they are not communicating," she said.

Tenants outside New York City could be disadvantaged because of limited access to attorneys, added Marcie Kobak, director of litigation for Legal Services of the Hudson Valley.

"Tenants could inadvertently waive defenses when they don't have counsel," Kobak said. 

Meanwhile, landlords and tenants across New York are continuing to demand improvements in the state's rental assistance program, which began releasing its first trickle of payments in July.

Jay Martin, director of the Community Housing Improvement Program, a landlord trade group, told Law360 on Tuesday that a successful rental assistance program is key and could resolve many eviction cases brought by landlords who are simply "looking to secure the debt they have to collect on."

More than 830,000 New Yorkers currently owe rent, according to recent findings by the National Equity Atlas, a policy group connected to the Equity Research Institute of the University of Southern California. New York state's Office of Temporary and Disability Assistance had issued 8,305 payments to landlords totaling $114.1 million as of Monday, an agency spokesperson said.

In addition to the memo released Tuesday, Judge Marks also released two administrative orders: AO/244/21 and AO/245/21. The former requires landlords to notify the court about rental assistance applications associated with their eviction cases. The latter provides more detail on conference requirements for cases that began before the pandemic. 

Finally, a directive issued Tuesday by New York City Administrative Judge Carolyn Walker-Diallo lays out city-specific conference requirements for warrants in cases predating the pandemic.

--Editing by Robert Rudinger.

For a reprint of this article, please contact reprints@law360.com.