On September 2nd, 2021, New York's eviction moratorium was extended until January 15th, 2022. Under this new moratorium, all protections of the Tenant Safe Harbor Act remain in place for residential tenants who are suffering financial hardships, as a result of the COVD-19 Pandemic. It also included new protections on commercial evictions.
On November 30th, 2021, the Building and Realty Institute of Westchester and the Mid-Hudson Region (“BRI”) and several multi-family apartment landlords filed a lawsuit in the United States District Court, Southern District of New York challenging the constitutionality of New York's moratorium. They allege that the new moratorium is not a meaningful improvement on the previous version of the moratoriums that the United States Supreme Court enjoined on August 21st, 2021. The Supreme Court found that a tenant's claiming of a hardship declaration without either presenting evidence of that hardship or indicating which hardship out of those listed on the form applied to their case violated the Due Process Clause.
The new moratorium introduced the possibility of a landlord-initiated evidentiary hearing to challenge the validity of a tenant's hardship declaration. However, the plaintiffs in this case argue that this still does not satisfy the right to due process. This is because the hardship declaration form still only requires the tenant to indicate that their hardship corresponds to one of several categories of hardship listed. Tenants still do not have indicate which type of hardship they are claiming. If a landlord wishes to challenge the hardship, he or she must prove that the tenant is not suffering the hardship they claim to be. The plaintiffs allege that this is difficult because the landlord often will not know what actual hardship the tenant is claiming.
The plaintiffs believe that this is a violation of their due process rights because it prevents landlords from prompt access to the courts and it prevents landlords from having a meaningful chance to challenge the tenant's claim of hardship.
Although there have been a number of lawsuits brought against the moratorium, this lawsuit is unique in that it incorporates the perspective of commercial landlords, who are now subject to the same hardship declaration as residential landlords, and housing cooperatives which also must rely on housing court to deal with those who refuse to pay their financial obligations.
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By: Shayne Messing
Law Clerk, Moss & Tapia Law

WESTCHESTER BUILDING & REALTY INSTITUTE FILES LAWSUIT CHALLENGING CONSTITUTIONALITY OF NEW YORK EVICTION MORATORIUM