Two Chief Judges Take Different Positions in Eviction and Foreclosure Lawsuits in New York

Chief Judge Lawrence Marks is opposing landlords eviction request and meantime Chief Judge Janet DiFiore is expediting wrongful foreclosures.

Blocking NY Eviction Law Would Be Overreach, Court Hears

MAY 21, 2021 | REPUBLISHED BY LIT: MAY 24, 2021

A top New York judge is among a group of defendants who pushed back Friday against landlords seeking to overturn statewide pandemic-related eviction protections, saying that the plaintiffs are inappropriately asking a federal court to interfere in state court matters.

Chief Administrative Judge Lawrence Marks (LIT Comment: the same court as DiFiore) and officials tasked with executing evictions in various counties argued that the landlords’ claims that an anti-eviction law is unconstitutional must be dismissed.

The Rent Stabilization Association and a group of small landlords are asking the court to violate abstention principles, the defendants said.

Siding with the plaintiffs would “embroil the federal courts in the state courts’ day-to-day management … and dictate the state-law procedures that state courts must follow,” Marks and his co-defendants warned.

This would violate the “core point” of the 1974 U.S. Supreme Court decision in O’Shea v. Littleton, they continued. Namely, that “the state, rather than the federal courts, should determine state-court procedures.”

The RSA and its co-plaintiffs filed suit May 6, seeking a preliminary injunction to block enforcement of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020.

Enacted in late December and recently extended through August, the law provides that most tenants who have experienced pandemic-related hardship can fill out a declaration form to pause or prevent an eviction case from proceeding against them. The law also extends protections against commercial evictions, as well as certain foreclosures.

Mirroring claims from a February federal suit that failed on jurisdictional grounds, the RSA argued in its complaint that the anti-eviction law forces landlords to distribute paperwork to their tenants about the law, endorsing a law they disagree with in violation of the First Amendment and state constitution.

The suit also claims that the hardship form is vague and violates landlord due process because it must be accepted at face value. It also said limited access to housing court under the CEEFPA violates a First Amendment right to petition.

These constitutional arguments are weak, the defendants claimed Friday, and don’t bode well for the RSA’s preliminary injunction request.

“Plaintiffs’ vagueness claim should be dismissed because a state court has already ruled that ‘the terminology used in CEEFPA consists of plain language that persons of ordinary intelligence can understand and not be forced to guess at its meaning,'” they argued, citing a state court decision out of Albany County in March.

The defendants also argued that the CEEFPA is temporary, and that “plaintiffs do not have a constitutional due process right to pursue eviction proceedings on their preferred timetable.”

Courts must consider the best interest of the public when weighing whether to issue a preliminary injunction, the defendants added, arguing that in this case, “preventing a homelessness crisis that would exacerbate the [COVID-19] public health crisis is unquestionably in the public interest.”

Also on Friday, two nonprofit groups that advocate for tenants — Housing Court Answers and Make the Road New York — filed a proposed amicus brief opposing the landlords’ request for injunctive relief.

The groups noted that the long-awaited distribution of $2.3 billion in federal pandemic rental assistance is expected to begin before the month is out.

“[T]he harm resulting from the eviction of plaintiffs’ tenants on the eve of federal relief distribution far outweighs any harm to plaintiffs if they are compelled to wait a short while longer for payment of outstanding arrears,” the amici claimed.

Reached for comment Friday, plaintiffs’ counsel Randy Mastro of Gibson Dunn & Crutcher LLP said the opposition papers “amount to nothing more than a vain attempt to evade federal court review of federal constitutional violations.”

New York’s anti-eviction law is “crippling small landlords throughout New York, and it cannot constitutionally continue any longer,” he added.

New York’s Office of Court Administration declined to comment Friday, as did New York City’s Department of Investigation, a co-defendant, which provides guidance to the city marshals who execute evictions.

The plaintiffs are represented by Randy M. Mastro and Akiva Shapiro of Gibson Dunn & Crutcher LLP.

The defendants are represented by New York Attorney General Letitia James and Assistant Attorney General Lori L. Pack.

The amici are represented by Edward Josephson and Roland Nimis of Legal Services NYC and Judith Goldiner, Ellen Davidson and Amber Marshall of the Legal Aid Society.

The case is Chrysafis et al. v. Marks et al., case number 2:21-cv-02516, in the U.S. District Court for the Eastern District of New York.

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The Chief Judge is Janet DiFiore and she is a client of Greenberg Traurig, who represented two lenders on appeals she reversed in their favor.

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Two Chief Judges Take Different Positions in Eviction and Foreclosure Lawsuits in New York
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