Since the beginning of the COVID-19 pandemic in March 2020, New York owners have been stymied and frustrated by the various eviction moratoriums that have been instituted — first by Executive Order of the Governor, and later by legislation. The current legislative iterations of the residential and commercial moratoriums are scheduled to expire on August 31, 2021, and rumors are circulating that the New York State Legislature is considering extending these moratoriums until the end of 2021 by reason of the disastrous rollout of the state’s ERAP rent relief program.
Against this backdrop, we are following a case currently pending in federal court that seeks to enjoin enforcement of Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Residential Moratorium”) as in violation of the United States Constitution. Specifically, in June 2021, a group of small landlords together with the Rent Stabilization Association of NYC, Inc. (“RSA”) commenced an action in the US District Court for the Eastern District of New York entitled Chrysafis et al. v Marks, Docket No. 21-civ-2516, asserting, among other things, that the Residential Moratorium violates (1) their Due Process rights by blocking owners from pursuing eviction proceedings or challenging tenants’ assertions of “hardship,” and (2) their First Amendment rights by compelling them to serve a Hardship Declaration — containing government-mandated messages, forms and information — with any process or notice, reducing them to mouthpieces of the State in service of a message that they do not support and would not otherwise convey.
The plaintiffs commenced the action on May 6, 2021. A hearing was held shortly thereafter, in connection with which the District Court notably held that the plaintiffs “satisfactorily demonstrated a risk of irreparable harm” from both the ongoing deprivation of their constitutional rights and their evidentiary showing as to the Residential Moratorium’s crippling effects. However, deferring to the State’s alleged “public health” interest, the District Court denied the plaintiffs’ preliminary injunction motion and held that their constitutional claims were unlikely to succeed and that the equities weighed against issuing an injunction. On June 14, the plaintiffs sought an emergency injunction pending appeal from the Second Circuit Court of Appeals, but that court denied such motion on July 26.
The following day, July 27, 2021, the plaintiffs filed a motion for an emergency injunction with the United States Supreme Court. The State’s response to the plaintiffs’ motion is due on Wednesday, August 4. The case docket and submissions can be accessed at the Supreme Court’s website: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a8.html.
We will continue to follow this case, which implicates the inherent conflict between the New York State government’s emergency powers and owners’ fundamental constitutional rights. If you have any questions about the effort to overturn the Residential Moratorium, or more generally about the current state of the law in this area, please do not hesitate to contact us.