BROOKLYN, N.Y. (CN) — The New York Attorney General's Office called it time Wednesday to snuff out a challenge against the state's ban on evictions during the Covid-19 pandemic brought by landlords who have proven themselves unsuited to mounting the case.
In a letter filed with U.S. District Judge Gary R. Brown this morning, Assistant Attorney General Susan Connolly seized on a finding Brown made Monday that none of the landlords who filed suit have bothered to challenge the declarations of financial hardship that their tenants signed to avoid eviction for nonpayment of rent.
“It may be that at some point," Connolly wrote, "they or others might have standing to pursue a claim based on the moratorium but that hypothetical circumstance cannot be the basis for a continuation of litigation here.”
New York state legislators tweaked the eviction moratorium earlier this year after the Supreme Court came through with an injunction for the landlords led by Pantelis Chrysafis. After the Second Circuit found that the change made the due-process issues moot, Judge Brown laid another hammer down with Monday's ruling that the plaintiff landlords lack standing.
The landlords argued in their amended complaint that the changes were illusory, since the landlords can’t collect their tenants’ financial details to challenge their declarations.
Brown agreed that the ban is not ideal but said their argument is doomed by their failure to challenge the declarations or to pursue other avenues for eviction.
“Examination of caselaw applying the amended statute reveals that courts have afforded hearings and made discovery devices available to permit similarly-situated landlords to meaningfully challenge hardship declarations,” his 27-page order states.
Connolly said Wednesday further proceedings should be foreclosed.
“Given that this Court has already determined that none of the plaintiffs herein have demonstrated standing at this point in time, it ventures into the realm of an abstract dispute were the Court to wait and see if future circumstances change the current state of affairs concerning these plaintiffs under the moratorium currently in effect or under some potentially new moratorium that might be enacted in the future but exists today only as a hypothesis,” she wrote (emphasis in original).
According to data the state presented during oral arguments in early November, landlords have filed hundreds of cases challenging hardship declarations, with hearings scheduled on a timely basis.
Brown, who said he granted a hearing for a challenge to a mortgage nonpayment financial hardship declaration two weeks earlier, said maybe it wasn’t a lack of knowledge stopping landlords from challenging hardship claims — but a dubious chance of success.
He pointed to an example from the very testimony given by the landlord Chrysafis, that one of his tenants died during the pandemic.
“Maybe he does know enough. He knows the chief wage-earner died,” Brown said. “He knows he’s not going to win.”
But attorney Randy Mastro, representing the landlords, said the moratorium puts too high a burden on the landlords to make that application, as it would force them to swear on penalty of perjury and in good faith that “not one” of the 9 or 10 potential hardship applies to a tenant.
“I’m too good a lawyer to let my client swear to something he doesn’t know,” he added.
Mastro, of the firm Gibson Dunn, called the eviction ban challenge the most “shocking and horrifying” he’s worked on, emphasizing that his clients are three who represent thousands.
“It’s wrong, it’s un-American, and I’m begging your honor to put a stop to this,” he said.
Despite the standing issues, Brown indicated that he wasn’t particularly in favor of the statute: “I agree with you that the solution to the problem is troubling,” he told Mastro. Arguments against the ban may fit thousands of landlords, he said, but not the ones who filed suit.
Mastro has not returned multiple requests for comment on the lawsuit.
On behalf of the state, Connolly echoed Brown’s leanings, arguing that the standing issue was central. She pointed to a plaintiff who had already received an eviction judgment in her favor after providing evidence against tenants who made knife holes in doors, smashed up bunk bed, left trash outside and even recorded a TikTok video setting the bathroom on fire.
Meanwhile a court clerk witness for the state notes that the eviction of those tenants has been delayed by a defective document.
“The point is it’s not the moratorium holding up that case,” Connolly said. “There are avenues there that have nothing to do with the moratorium at all.”
Connolly even offered some options, like observing or asking neighbors about a tenants’ comings and goings. If a tenant claiming a hardship was leaving the house every day wearing a work uniform, for instance, it would likely be enough for a hearing.
“Courts in the state have made it a very low bar — a bar that, I submit, these plaintiffs could probably meet if they even bothered to try,” Connolly said. “But they haven’t bothered to try.”
The complaint by the landlords names as a defendant New York Chief Administrative Judge Lawrence K. Marks. A representative for the court system declined to comment on the ruling or Monday's letter.
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