The Building & Realty Institute Files Lawsuit Challenging the Constitutionality of the NYS Eviction Moratorium
(WHITE PLAINS, N.Y.) On November 30, 2021, the Building & Realty Institute, its component councils, the Apartment Owners Advisory Council (AOAC) and the Cooperative Condominium Advisory Council (CCAC), and several multifamily apartment landlords filed a lawsuit challenging the constitutionality of the extension of the New York State eviction moratorium that was signed into law on September 2, 2021.
“This law is a clear violation of due process and our rights as property owners,” said Alana Ciuffetelli, Chair of the AOAC, which represents hundreds of landlords in Westchester County. “It isn’t fair that tenants can simply file a hardship claim that doesn’t need to be validated yet property owners must jump through hoops in order to challenge these claims or receive compensation for our hardships.”
The BRI filed the lawsuit in the U.S. District Court, Southern District of N.Y., in White Plains. The White Plains law firm of Finger & Finger, A Professional Corporation, Chief Counsel to the BRI and its affiliate organizations, is representing the BRI and the accompanying plaintiffs in the litigation.
The plaintiff charges that the new moratorium has not meaningfully improved upon the previous version of the NYS eviction moratorium, which the United States Supreme Court enjoined on August 12, 2021. In that case, the Court found that a tenant’s self-attestation of hardship declarations without either presenting evidence of the hardship being claimed or even by indicating which of the many hardships listed on the form applied to the tenant’s case to allow for some measure of independent verification meant that, “[the moratorium] violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.”
Although the new moratorium did add the possibility of a landlord-initiated evidentiary hearing to challenge the validity of a tenant’s hardship declaration, the plaintiffs maintain that this still does not provide them with their right to due process. The hardship form still merely requires the tenant to indicate that their case corresponds to one of several categories of hardship without indicating which one they are claiming. To challenge the hardship, the landlord must make a good faith attestation and offer proof that the tenant is not suffering the hardship, despite no knowledge of which hardship is being claimed.
As a consequence, the plaintiffs claim that this denial of due process eviscerates the rights of property owners by denying them prompt access to the courts, denying them a meaningful ability to challenge tenant claims of hardships, vacating long standing judgments against tenant for an indeterminate period of time, and rendering it impossible for the owners to reinstate the judgments or even to restore the cases to the calendar for further proceedings.
“It is extremely crucial for property owners to stand together and show their support for this case,” Lisa DeRosa, BRI President and White Plains landlord said. “Landlords have endured enough with the pandemic and the eviction moratorium and now it is time that we make sure our rights are no longer being violated. If we can’t evict non-paying tenants and we can’t challenge their hardship claims, where does that leave us?”
Although there have been a number of lawsuits brought against the New York State eviction moratorium, this Westchester-based case in unique in incorporating the perspective of commercial landlords, who are now subject to the same hardship declaration as residential landlords, and housing cooperatives which, although they do not have a traditional rental agreement with the owner shareholders who reside in the building, must also rely on housing court to deal with residents who fail to pay their required building maintenance fees and other financial obligations over a protracted period of time, and therefore are also subject to the eviction moratorium.
The lawsuit claims that the members of the BRI in total have suffered millions of dollars in losses as a result of the moratorium. These losses include rents not paid by commercial tenants who have remained operational throughout the pandemic, residential tenants who receive rent subsidies or whose rents decreased with any reduction in income, and other tenants who may not actually have sustained a hardship, but all of whom have seen fit to merely sign an unsworn statement that they had a hardship. Importantly, even cases where the tenants did not appear for court have now not only been delayed until January 2022, but in some instances have been delayed indefinitely unless the tenant involved requests that the case proceed.
The Building and Realty Institute of Westchester and the Mid-Hudson Region (BRI), based in Armonk, has more than 1,800 members in 14 counties of New York State, including home builders, commercial builders, renovators, property managing agents, co-op and condo boards, and owners of multifamily apartment buildings in many communities, as well as suppliers and service providers with a special focus on real estate. The BRI’s mission is to improve the relationships among builders and real estate business owners to the mutual advantage of the industry. For additional information, please visit https://www.buildersinstitute.org.