By Emma Whitford

Law360 (January 20, 2022, 6:04 PM EST) -- A state law that kept most evictions at bay during the coronavirus pandemic has expired, but new court directives maintain a procedural buffer to help New York City tenants match with a lawyer and mount defenses.

If a tenant fails to respond to initial court papers, guidance issued Jan. 16 and 17 requires that the landlord make a motion, triggering a court date where the tenant can connect with an attorney. Whereas historically, the process to obtain a quick win — by way of a so-called default judgment — was ministerial and did not require notice to the tenant.

Although a pre-default hearing requirement expired on Jan. 15 along with New York's COVID-19 Emergency Eviction and Foreclosure Prevention Act, "there must still be a motion on notice so that the court can be sure the respondent knows the case is moving forward," courts spokesperson Lucian Chalfen told Law360. 

The new directives come at a pivotal time, as attorneys were waiting to see whether standard default and warrant procedure would resume this month.

Many landlords who won possessory judgments during — and even before — the pandemic will also have to make a motion before they can execute an eviction.

"I don't find it to be fair, but I'm not at all surprised," said David Skaller, co-head of litigation at Belkin Burden Goldman LLP, who represents property owners.

Prior to the pandemic, New York City tenants had 10 days to contact the court after being sued for nonpayment of rent. Doing so would lock in their first appearance, and kick off the standard, monthslong court process.

But missing the deadline could result in a default, which would clear the way for a city marshal to post an eviction warrant on their door on an accelerated timeline.

The scenario was not uncommon. 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 after the pandemic hit.

The new directives have sparked frustration among landlord attorneys, who say the process of securing a default judgment will continue to be drawn out. 

"Now we have to generate a court appearance and that's going to clog the courts," said Lisa Faham-Selzer of Kucker Marino Winiarsky & Bittens LLP.

Tenants who default are not without recourse. Once a tenant receives a warrant at their apartment, they can still file an "order to show cause" to have their case reopened.

"The default process speeds things along because I can then get a marshal out there, I can get the tenant back into court, and then I can enter into a new agreement with them," Faham-Selzer said.

But it's important for tenants to have multiple chances to act before they receive a "terrifying" eviction notice on their door, according to Nakeeb Siddique, director of the housing office at the Legal Aid Society's Brooklyn Neighborhood Office.

"It creates an added layer of process so the person doesn't give up and leave," Siddique said.

Tenants will have to watch their mail carefully for notices and should call 311 for help interpreting them, he added. But they should be able to confer with a lawyer, who in turn can help them apply for rental assistance or otherwise resolve their case.

The motion requirement for defaults also exists outside of New York City, where tenants are usually assigned an initial court date at the outset of their case.

"Normally if they don't appear, the warrant is granted at that first court date," said Jaime Cain of Lipsitz Green Scime Cambria LLP, who represents landlords in Buffalo, New York. Now, "if they don't come to the court date, they get a built-in adjournment before they can be evicted." 

But that extra court appearance could mean little for renters in large swaths of the state where free legal counsel is hard to come by, warned Rebecca Garrard, housing campaign manager for Citizen Action of New York.

"To so many tenants without resources, a [case] filing notice might as well be a warrant of eviction," she said.

The week's new court directives recall the early days of the pandemic, when administrative judges frequently issued guidance interpreting eviction-related laws and executive orders, or how to proceed when they lapsed. The messaging was complex and changed frequently.

The sunset of New York's broad, yearlong anti-eviction law on Jan. 15 has once again placed the judiciary "in the hot seat," said Patrick Tyrrell, a staff attorney for Mobilization for Justice.

"Zooming out a little bit, this is not legislated," he added. "This is all court procedure that could change at their complete discretion."

--Editing by JoVona Taylor.

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