By Emma Whitford

Law360 (November 5, 2020, 11:49 AM EST) -- An order from New York Gov. Andrew Cuomo, signed quietly on Election Day, aims to create a 60-day window for thousands of New York City tenants to avoid losing their eviction cases by default, though its interpretation will be left up to individual judges.

Executive Order 202.72 comes less than a week after New York City tenant attorneys raised the alarm that a monthslong, pandemic-related pause on default judgments was poised to lift on Nov. 4, and has prompted consternation among landlord attorneys even as some tenant attorneys worry the order lacks specificity. 

A default is a major step toward eviction that can be difficult to reverse, as tenants must take proactive steps to have their cases reopened.

Citing this risk, tenant attorneys had urged Cuomo to provide extra time for the courts to contact city renters who received eviction petitions for nonpayment of rent between June and October, but were assured via a court-issued pamphlet that, rather than the standard 10 days, they "might be entitled ... to take additional days or weeks to file an answer."

These tenants need a reasonable window to "answer," or contact the court to state their defenses and schedule a hearing, the lawyers said.

The issue is concentrated in New York City, as elsewhere in the state tenants typically receive a court date along with the first mailed notice that they are being sued.

Seeming to heed attorneys' concerns, Cuomo's latest order states that, even as standard deadlines resume for cases filed going forward, "the time to answer in any summary eviction proceeding for nonpayment of rent that is pending on the date of the issuance of this executive order will be 60 days."

"Now, the law is clear that tenants with outstanding cases that were delayed by COVID-19 have sufficient time to respond to any filings before a final judgment is entered against them," Cuomo spokesperson Jack Sterne said in a statement to Law360.

Ellen Davidson, a staff attorney with the Legal Aid Society in New York City, said she is hopeful that Cuomo's latest order has "given the courts the time to do the right thing."

It is now crucial for the courts to do outreach, she added. Of 17,388 residential nonpayment cases filed in the city from June 22 onward, only 15%, or 2,858, had answered as of Oct. 29.

"They need to do more than publish this on their website," Davidson said. "They need to mail notices to all the tenants."

"The New York City Civil Court is working on several ways to advise tenants about the importance of answering petitions as soon as possible during the executive order's grace period," spokesperson Lucian Chalfen told Law360.

Several landlord attorneys balked at the new order, calling it is just the latest example of the governor blocking the courts from functioning and ignoring their clients' increasingly dire need to collect rent.

New York Chief Administrative Judge Lawrence K. Marks already warned in a memorandum last month to expect "far lengthier time periods" for hearings and decisions "than anticipated ... under pre-COVID conditions."

"The drip, drip, drip continues while more and more owners get deeper underwater, with rent, tax and mortgage arrears accumulating," said Mitchell Posilkin, general counsel for the Rent Stabilization Association, a landlord trade group.

"The system is about to collapse and all for the sake of short-term political expediency," added Nativ Winiarsky of Kucker Marino Winiarsky & Bittens LLP.

"The courts will be careful, and rightfully so, but the system has to continue to operate because it is so intertwined with connecting tenants to resources," added Joseph Condon, general counsel for the Community Housing Improvement Program, another landlord trade group. 

Attorneys on both sides also criticized the wording of the order, which they said is vague. Some wondered whether nonpayment cases filed after Nov. 3 will benefit from a 60-day buffer, or will be subject to the standard 10-day answer period.

Cuomo's office told Law360 that the order is intended to apply to cases filed between June 22, when state courts began accepting new filings, and Nov. 3, when the order was signed. Tenants in each of these cases should have 60 days from Tuesday to answer.

But Chalfen told Law360 that interpretation of this latest order will be left up to individual judges, even as he offered a "fair" interpretation.

"This will be a question for individual judges to answer as they apply the new executive order to the cases that come before them," Chalfen told Law360. "However, one fair reading of the language ... would be that the grace period does not apply to cases commenced after the date of the executive order."

Some tenant attorneys also expressed concern that the order isn't clear as to when the 60-day window starts: on Nov. 4 for all cases, or on the date each case was filed. That, too, will be left to judges to interpret, Chalfen said.

"Leaving it up to individual judges to decide behind closed doors when they are considering a landlord's request for a default judgment is... bound to lead to a range of inconsistent results," said Marika Dias, attorney and director of the Safety Net Project at the Urban Justice Center.

In the meantime, Davidson said, tenants sued for the nonpayment of rent in the coming weeks and months should act quickly to avoid risking a default judgment, and set themselves up to most easily raise pandemic-related eviction defenses such as the so-called Tenant Safe Harbor Act. 

"Call 311 and ask to be connected to the tenant helpline," she advised. "Speak to an attorney and then answer within the 10-day period."

--Editing by Katherine Rautenberg.

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