An attorney for the property owners said the state is forcing his clients to tell tenants, “Here’s a form, check the box and you don’t have to pay rent.”
BROOKLYN (CN) — A single mom and Air Force veteran says that New York state’s eviction moratorium has stopped her from reclaiming a home from nonpaying tenants, and forced her to live with her ex-fiancée.
Brandie LaCasse audibly choked up during her testimony in federal court Tuesday. She is one of four plaintiff property owners suing New York’s court system to block enforcement of the statewide ban on evictions during the Covid-19 pandemic.
Along with the named plaintiffs suing the state is the Rent Stabilization Association of New York City, a real estate industry trade group that says it represents 25,000 property owners. The organizations Housing Court Answers and Make the Road New York have also joined the suit.
The plaintiffs say the ban violates both due process and free speech laws under the U.S. Constitution.
“[The eviction stay] has trampled on their constitutional rights, denied owners any benefit from their property, and freed tenants from any consequence for refusing to pay their rent, giving them carte blanche to overstay the expiration of their leases — even if their nonpayment or lease expiration began before the pandemic,” the plaintiffs say in their 49-page complaint filed in the Eastern District of New York.
Under the state eviction pause, landlords must give their tenants “hardship declaration” forms, which the tenants can then fill out if they are experiencing financial challenges because of the pandemic. That statute compels speech, the landlords say.
But the First Amendment argument likely won’t go anywhere with U.S. District Judge Gary R. Brown.
Before parties even presented their cases Tuesday, Brown said he was not moved by the free speech claims, raising other examples of government-required messages, like health warnings on cigarettes and mandatory fire exit signs.
“I can be dissuaded from anything,” Brown said, “but I spent a lot of time preparing.”
It was the due process argument that piqued the judge’s interest, he said.
The landlords argued that they don’t have a fair method of challenging their tenants’ declarations of financial hardship.
“They’ve had a deprivation of their property and their ability to live in their own property,” said attorney Randy Mastro. He argued that post-deprivation remedies available don’t make his clients whole.
Even when the eviction ban — passed in December 2020 and recently extended through the end of August — is lifted, the hardship will be considered a rebuttable presumption in housing court, said Mastro, of the firm Gibson Dunn.
He said the government is essentially forcing his clients to say to their tenants, “Here’s a form, check the box and you don’t have to pay rent.”
Testifying for the state, Alia Razzaq, chief clerk of New York City civil court, said that around 100 eviction warrants have been issued since March of last year — an event that follows a 14-day notice from a landlord.
Although Razzaq acknowledged that disputes between tenants and landlords can be lengthy, typically lasting between four and six months, she said matters involving eviction warrants will probably be first in line after the eviction ban has ended.
“It’s likely that those who received 14-day notices will visit the court first,” Razzaq said.
The chief court clerk also said that the state Office of Court Administration had mailed out 500,000 hardship declaration forms itself, and would likely execute another mass mailing when the eviction ban ends.
Mastro took that opportunity to make his compelled speech argument, in spite of the judge’s warning.
The government “offered the proof that there were narrowly tailored alternatives to forcing my client to be the one to [disseminate the forms],” Mastro said.
Judge Brown asked Mastro if, when he looks back on this case, he will feel that the real hardship facing his clients was that they had to give the forms to their tenants.
“I am not suggesting that one claim rises above the others,” Mastro replied.
For plaintiff LaCasse, who said the family living in one of her six residences stopped paying rent late last year, the lack of rental income has her facing a quasi-eviction of her own: Her ex-fiancée wants his current partner to move in and wants LaCasse to start paying more than $5,000 per month in rent.
“He’s been asking me to leave for a couple months,” LaCasse said, her voice breaking up with emotion through the phone lines of the remote hearing. Her ex sends “nasty text messages,” telling her to get out, she added.
“He’s with somebody else,” LaCasse said. “He wants her to come here.”
LaCasse said the family that refuses to pay rent is also trashing her property. She described smashed-up bunk beds in the shed, and tickets from the town of Rhinebeck, where the home is located, because of trash littering the five-acre property.
When LaCasse served her tenants with a non-renewal form, with the intention of moving into the rental home herself, she said one of the renters replied, “I’m a Cuomo, you’ll never get me out of here,” an apparent reference to the eviction stay first instated by Governor Andrew Cuomo’s executive order.
Plaintiff Betty Cohen, 68, also testified, telling the court that her tenant of 25 years, who previously hadn’t missed a payment had stopped paying rent during the pandemic.
Cohen said she is now strapped, and has exhausted any help she can get from family and friends.
“It’s my cushion,” Cohen said of her rental income. “It’s my retirement money.”
Judge Brown reserved judgment on the landlords’ preliminary injunction motion, but stayed the matter — which names New York Chief Administrative Judge Lawrence K. Marks — as to the other defendants, including county sheriffs and court marshals.
Brown told attorneys for those parties not to file anything or run up bills for municipalities. As to the injunction, he said he would rule “as soon as possible.”
A representative for the state court system declined to comment. Mastro did not immediately respond to a request for comment.
In May, a federal judge in Washington struck down a nationwide eviction moratorium, ruling that the U.S. Centers for Disease Control and Prevention overstepped its authority.
The CDC said that an eviction stay could keep 40 million Americans housed and, as New York lawmakers also argued, potentially reduce the spread of Covid-19.