By Emma Whitford

Law360 (September 29, 2020, 10:14 PM EDT) -- New York Gov. Andrew Cuomo on Tuesday issued an order extending protections to a subset of residential tenants who were facing eviction lawsuits before the coronavirus pandemic shut down state courts, just days before a statewide eviction ban is scheduled to lift.

The executive order does not continue that blanket eviction ban, set to expire Oct. 1. 

Rather, it appears to temporarily expand the pool of tenants who qualify for the so-called Tenant Safe Harbor Act. Signed in June, the law blocked evictions for unpaid rent accrued between March 7 and the end of New York's state of emergency — so long as a tenant can prove to a judge that they have experienced financial hardship.

Tenants who already faced eviction for nonpayment of rent before March 7 can now raise the hardship defense, according to Cuomo's office. If the court finds that they qualify, the tenant cannot be evicted until after Jan. 1 at the earliest. 

The order doesn't appear to impact the more than 8,000 cases filed since the pandemic began, according to data compiled by NYU's Furman Center, which are on indefinite hold and are unlikely to resolve before the new year.

"We are extending the protections of the Safe Harbor Act through January 1 because we want tenants to have fundamental stability in their lives as we recover from this crisis," Cuomo said in a statement.

But tenant advocates were quick to criticize the move, saying that it adds more confusion than stability or relief just as new COVID-19 clusters are emerging in Brooklyn and Queens. Protests planned for Oct. 1 will proceed. 

"Cuomo is all fluff and no substance," said Cea Weaver, an organizer with Housing Justice for All, a tenant coalition pushing state bills to cancel rent and evictions for months to come. "He [made] a press release that does nothing and just confuses people."

Some tenant attorneys said the order could help delay eviction for tenants who were sued before the pandemic, but stressed its limitations.

The Tenant Safe Harbor Act does not apply to holdover cases, a broad category that can be brought against tenants who overstay or violate a lease term. It also allows landlords to seek money judgments against tenants.

Ellen Davidson of the Legal Aid Society compared Cuomo's order unfavorably to a qualified federal eviction ban from the Centers for Disease Control and Prevention, which is also in place through Jan. 1.

"If the governor wasn't going to help tenants by issuing an order that was stronger than the CDC order, it is not clear why he decided to issue an order at all," Davidson told Law360.

Adding to the general uncertainty, a spokesperson for the state's Office of Court Administration said the courts had no advance notice of Cuomo's plan. As of Tuesday, the court had not issued its own guidance on the order.

"We are in the process of getting clarification on the [executive order] and will issue further guidance when appropriate," spokesperson Lucian Chalfen told Law360 by email.

Cuomo spokesperson Jack Sterne offered some clarifications on the order Tuesday. For example, he said that all tenants with a pending nonpayment case predating the pandemic can raise the hardship defense, not just those with outstanding warrants and judgments. 

He also said that tenants sued after March 7 will be able to raise the defense for unpaid rent accrued between that date and whenever the state's pandemic emergency restrictions lift. 

But attorneys said the courtroom is where the rubber really hits the road.

"I think what the governor's press team tells us is what the governor's intentions were," said Marika Dias, attorney and director of the Safety Net Project at the Urban Justice Center in New York City. "Ultimately, it will be up to the courts to decide the scope of the language of the [order] and what it covers." 

There are 200,000 pending eviction cases that predate the pandemic in New York City alone, according to the Office of Court Administration. Among those furthest along are fewer than 2,000 in which landlords are currently seeking to enforce an outstanding eviction warrant.

How many of those cases proceed before January and test Cuomo's order remains to be seen, depending on factors including the ongoing adjustment to virtual hearings.

Landlord attorneys, meanwhile, have been consistently frustrated with New York's handling of evictions during the pandemic, criticizing the steady flow of orders and directives that have ground many proceedings effectively to a halt. 

"I am trying to get my head around the fact that the governor just unilaterally modified [a] statute," Matthew Brett of Belkin Burden Goldman LLP told Law360 Tuesday.

Mitchell Posilkin, general counsel for the Rent Stabilization Association, a landlord trade group, said Tuesday that these orders are a distraction from the rent relief that landlords desperately need. 

"Our lawyers will debate this in the days to come, but the reality is that it's all beside the point," Posilkin said. "These are not real solutions."

--Editing by Jay Jackson Jr.

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