Atty Gaps, Case Backlogs Set Stage As NY Eviction Hold Lifts

October 20, 2020

New guidance from New York's court system has toppled some of the final barriers to residential evictions during the coronavirus pandemic, although how quickly cases proceed will depend on factors like case backlogs and tenants' access to counsel, lawyers say.

Published shortly after Gov. Andrew Cuomo issued an order aiming to block many evictions through year's end, Chief Administrative Judge Lawrence Marks' Oct. 12 order and accompanying memo state plainly that all eviction cases can now proceed, lifting a monthslong suspension of cases filed since June.

"All residential eviction matters — nonpayment and holdover, without regard to the date of commencement — may resume statewide, with certain important caveats," the memo stated.

These caveats include a thicket of eviction defenses, such as a partial eviction moratorium issued by the Centers for Disease Control and Prevention through December, and protections instituted by the state Legislature and Cuomo that can prevent evictions for unpaid rent so long as a tenant can prove they have experienced financial hardship.

Tenants also cannot default for failure to answer a nonpayment case filed against them. But that protection could fall away Nov. 3, Judge Marks said, with the expiration of an executive order that has suspended procedural deadlines.

Tenant attorneys and advocates told Law360 that Judge Marks' latest guidance puts the onus on tenants to assert defenses, and that their success will depend largely on access to counsel, which varies widely across the stat

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