By Emma Whitford

Law360 (December 23, 2020, 10:53 AM EST) -- New York City courts have begun issuing default judgments in newly filed eviction cases, adhering to recently reinstated court deadlines that can fast-track an eviction before a tenant has the chance to invoke pandemic-specific defenses in front of a judge.

The resumption of such defaults comes as state lawmakers contemplate a rare year-end session to broaden pandemic-related eviction protections this winter.

Roughly 10 out of more than 8,000 New York City tenants who were sued for nonpayment of rent since Nov. 3 had defaulted as of mid-December because they failed to make timely contact with the court, according to the city's chief administrative judge and data provided by the Office of Court Administration.   

These renters appear to be the first New York City tenants sued during the pandemic to face imminent eviction. Until recently, only city tenants with cases predating the pandemic had been issued default judgments or been evicted.

Landlord attorneys and interest groups emphasized to Law360 that the handful of recent defaults make up a small percentage of cases filed, and that a potential new injection of federal rent relief announced this week could help resolve nonpayment disputes.

"There's absolutely no doubt that the money will help," Jay Martin, director of the Community Housing Improvement Program, a New York City landlord trade group, told Law360.

Agreeing that rent relief is welcome, tenant attorneys nevertheless told Law360 that even a small number of defaults is cause for concern, particularly because they think the courts have not done enough to assist thousands more tenants who will become default-eligible shortly after New Year's Day.

Tenant lawyers are also worried that defaulted renters will travel to courthouses in person to attempt to reopen their cases, even as the coronavirus pandemic persists this winter.

New York's courts lifted a blanket hold on residential evictions in October, though certain tenants can still avoid eviction if they demonstrate to the court that they are struggling financially because of the pandemic.

Meanwhile, state legislative leaders have indicated this week that they may seek to reinstate eviction protections that leave less to judicial discretion.

"We are pretty clear that we want to do an eviction moratorium … that make[s] sure that people are able to stay in their homes," State Assembly Speaker Carl Heastie told reporters Monday. "We don't want people to have to walk into court to have to prove a hardship, so we're working on that language."

Without more details from the legislature, it's not known how lawmakers might address the roughly 20,000 New York City tenants sued for nonpayment of rent between June 22 and Nov. 3, who are currently protected from default by a special buffer period instituted by Gov. Andrew Cuomo last month and set to expire Jan. 3.

The governor took action after attorneys warned that the standard 10-day window to "answer," or contact the court to schedule an initial hearing, was set to resume after a months-long pandemic suspension.

In a Zoom call with hundreds of housing court attorneys on Dec. 18, New York City's Chief Administrative Judge Anthony Cannataro said that more than 7,000 people sued during the pandemic had answered as of Dec. 15, after the courts sent out letters urging tenants to answer quickly.

Judge Cannataro also stressed the small number of defaults so far in these pandemic-era eviction cases, even as he suggested that court staff have the capacity to process more.

"These numbers that I'm talking about, you could probably [count] on all your fingers and toes," Judge Cannataro said.

Yet, he added, "We haven't received that many applications. So, it's not that we're slow in processing them. There could come a time when the number of applications exceeds our ability to process them, but we haven't hit that time yet."

Lisa Faham-Selzer of Kucker Marino Winiarsky & Bittens LLP told Law360 that her firm has been applying for default judgments on behalf of its landlord clients in recent weeks.

She predicted that more attorneys will follow suit, now that Judge Cannataro has clarified that the 10-day answer deadline has resumed for cases filed after Nov. 3.

"I think we will now see an upsurge in default judgment applications," Faham-Selzer said.

Once a default judgment is granted, a landlord can request an eviction warrant. So far, the process for securing the warrant has taken about a week, according to Faham-Selzer, though she predicts more applications could slow that process.

Jeffrey Seiden, a partner at the real estate law firm Borah Goldstein Altschuler Nahins & Goidel PC told Law360 that pursuing a default judgment is sometimes the only option if a tenant is "ignoring the nonpayment proceeding that was filed."

"The longer the pandemic goes on and the property owner's expenses continue to accrue, there is no other way to deal with a tenant who isn't paying and ignoring the situation," Seiden added.

But Marika Dias, managing director of the Safety Net Project at the Urban Justice Center, called it "entirely unjust and shameful" that the courts have begun issuing default judgments in these cases. Tenants have run into trouble when they try to answer their petitions by phone, as the courts have instructed them to do, she said.

"The NYC Civil Court has increased staff assigned to take telephonic answers, and has also implemented several measures to improve phone technology so that more calls are answered faster," courts spokesperson Lucian Chalfen told Law360 in an emailed statement. "However, as call volumes increase ahead of the January 3rd answering deadline [for pre-Nov. 3 cases], callers should expect long waiting and callback times."

Tenant attorneys also said that default judgments make it difficult for their clients to raise special state and federal eviction defenses, which are intended to keep tenants housed.

For example, the Tenant Safe Harbor Act can block a tenant from being evicted for unpaid rent during the pandemic. This is easier to invoke for tenants who answer on time, and can lay out their circumstances to the court before the eviction warrant is issued.

The same goes for a qualified federal eviction ban issued by the Centers for Disease Control and Prevention, which the federal government is poised to extend until the end of January.

"No defense is any good for you if you're in default because by definition you haven't raised it in court," said Edward Josephson, director of litigation and housing at Legal Services NYC.

Defaulted tenants can file an "order to show cause" to have their case reopened, but the pandemic has complicated a process that can be alarming to begin with, as unrepresented tenants often learn they have defaulted when an eviction notice appears on their door.

Under normal circumstances, tenants simply travel to the courthouse to file such an order. 

Now, as long as the case is filed electronically, tenants can submit answers through the New York State Courts' e-filing system, known as NYSCEF. But tenant attorneys worry unrepresented renters will find it more accessible to just go to the courthouse.

"This is not something we want to encourage just now since we're really trying to keep courthouse traffic down and since we're only allowing a very small number of people into the clerk's office at a time," New York City Housing Court Supervising Judge Jean Schneider said on the Dec. 18 Zoom call with lawyers.

Josephson of Legal Services NYC and other tenant attorneys have urged the courts to establish special hearings for tenants at risk of default in recently filed cases, in order to match them up with lawyers and increase their chances of mounting a strong defense.

But the courts have tossed cold water on the idea.

Such a move would "represent a major step into policy making by the court, something which [the Office of Court Administration] has previously said it would not do," Chalfen, the courts spokesperson, told Law360.

--Editing by Alyssa Miller.

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