Eviction Ban Appeal by NY Landlords Flops at Second Circuit

MANHATTAN (CN) — A group of Westchester landlords failed to convince the Second Circuit that they had a viable challenge against New York Governor Andrew Cuomo’s temporary Covid-19 eviction moratorium that came into force — and also expired — last summer. 

Until the end of next month, evictions remain illegal in New York. But the ban in place is the product of laws passed and later extended by the state Legislature, not the governor, whose initial stay on evictions expired in August of 2020. 

The landlords had taken issue with a provision of Cuomo’s executive order allowing tenants to pay rent using their security deposits if need be, arguing that even state grants to landlords would be no help to the property owners, since they would not replenish security deposits. 

Plus, said attorney Mark A. Guterman, the pandemic isn’t over, and nobody can predict what future orders the governor may impose. 

“The court recognized that all such restrictions and Orders could yet be reimposed as conditions warranted, especially if the number of infection cases was to spike,” Guterman wrote in a letter to the judges in June. “Given the identification of the recent, Delta Variant, the concern that Governor Cuomo might act again remains ever present.” 

Guterman, of the firm Lehrman Lehrman & Guterman, said his clients’ suit falls under an exception to mootness like the one extended to houses of worship in a Supreme Court ruling in favor of Roman Catholic and Orthodox Jewish groups, who sued Cuomo over capacity limits. 

In an unsigned summary order Friday, the circuit court disagreed. Contrasting the case at hand to what happened with houses of worship, they noted that the eviction ban simply ran out of time while Cuomo voluntarily lifted the other requirements. 

“This is not a case where the challenged restrictions were voluntarily withdrawn or altered during litigation,” the 8-page order states. “They expired by their own terms, and in the circumstances presented, including the intervening passage of legislation, we are not persuaded that there is ‘a reasonable expectation of recurrence.’”

Earlier in the decision, U.S. Circuit Court Judges Dennis Jacobs, Denny Chin and William J. Nardini pointed to oral arguments, where they said "plaintiffs apparently abandoned their claim for nominal damages, which might otherwise have prevented their appeal from being mooted."

Top U.S. health officials seem to be in agreement that the pandemic’s state does not warrant future eviction-banning actions. Last month, the Centers for Disease Control and Prevention extended their nationwide moratorium until July 31 — but declared that it would be the last time.

Even if the worst of the Covid-19 pandemic is behind us, Guterman said that courts should take an opportunity to weigh in on pandemic-related policies to avoid a legal scramble in the event of another health emergency — for “next time,” as he told Courthouse News following oral arguments.

“The medical community looks back at how things were done over the course of a pandemic, and they try to make new ways of dealing with things, so that if it ever happens again, they won’t be caught short — as we clearly were when this pandemic started,” Guterman said. “The hope is that the law can do the same thing.” 

Guterman did not respond to a request for comment following the dismissal, nor did Cuomo’s office. 

Follow @NinaPullano

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit