Chrysafis v. Marks

• Decision Date: 11 June 2021
• Docket Number: 21-cv-2516 (GRB)
• Citation: 544 F.Supp.3d 241
• Parties: Pantelis CHRYSAFIS, Betty Cohen, Brandie LaCasse, Mudan Shi, Feng Zhou, and Rent Stabilization Association of NYC, Inc., Plaintiffs, v. Lawrence K. MARKS, in his official capacity as Chief Administrative Judge of the Court of New York State, Adrian H. Anderson, in his official capacity as Sheriff of Dutchess County, New York, James Dzurenda, in his official capacity as Sheriff of Nassau County, New York, Joseph Fucito, in his official capacity as Sheriff of New York City, New York, Margaret Garnett, in her official capacity as Commissioner of the New York City Department of Investigation, and Caroline Tang-Alejandro, in her official capacity as Director, Bureau of Marshals, New York City Department of Investigation, Defendants.
• Court: U.S. District Court — Eastern District of New York

544 F.Supp.3d 241

Pantelis CHRYSAFIS, Betty Cohen, Brandie LaCasse, Mudan Shi, Feng Zhou, and Rent Stabilization Association of NYC, Inc., Plaintiffs,

v.Lawrence K. MARKS, in his official capacity as Chief Administrative Judge of the Court of New York State, Adrian H. Anderson, in his official capacity as Sheriff of Dutchess County, New York, James Dzurenda, in his official capacity as Sheriff of Nassau County, New York, Joseph Fucito, in his official capacity as Sheriff of New York City, New York, Margaret Garnett, in her official capacity as Commissioner of the New York City Department of Investigation, and Caroline Tang-Alejandro, in her official capacity as Director, Bureau of Marshals, New York City Department of Investigation, Defendants.

21-cv-2516 (GRB)

United States District Court, E.D. New York.

Signed June 11, 2021

Akiva Shapiro, Randy M. Mastro, Gibson, Dunn & Crutcher LLP, New York, NY, for Plaintiffs.

Lori L. Pack, Susan M. Connolly, Office of the New York State Attorney General, Hauppauge, NY, for Defendant Lawrence K. Marks.

Kimberly Hunt Lee, McCabe & Mack LLP, Poughkeepsie, NY, for Defendant Adrian H. Anderson.

Laurel R. Kretzing, I. Ian Bergstrom, Office of the Nassau County Attorney, Mineola, NY, for Defendant James Dzurenda.

Rachel Kane Moston, New York City Law Department, Yungbi Ann Jang, NYC Law Department Corporation Counsel, New York, NY, for Defendants Joseph Fucito, Margaret Garnett, Caroline Tang-Alejandro.

MEMORANDUM AND ORDER

GARY R. BROWN, United States District Judge:

"Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox

, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety."

- Jacobson v. Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 49 L.Ed. 643 (1905)

Suffering significant financial hardships from measures aimed at curbing the spread of COVID-19, five small landlords seek to preliminarily enjoin enforcement of New York State's eviction moratorium and related provisions as unconstitutionally infirm. Plaintiffs have satisfactorily demonstrated a risk of irreparable harm but, particularly given the State's strong interest in combatting the severe public health emergency, fail to demonstrate a likelihood of success on their constitutional challenges or equities weighing in their favor. Thus, the application for a preliminary injunction is denied. In light of the importance of the matters at issue, the Court has consolidated the merits of the action with this application, which should facilitate appellate review.

BACKGROUND

A. Procedural History and the Evolving Legal Landscape

In early 2020, "New York State enacted a slate of statutes, administrative orders, and executive orders aimed at combatting both the public health risks and economic devastation wrought by the disease."

Melendez v. City of New York , No. 20-CV-5301 (RA), ––– F.Supp.3d ––––, ––––, 2020 WL 7705633, at *1 (S.D.N.Y. 2020).¹ The initial enactment, Executive Order ("EO") No. 202.8, entered March 20, 2020, imposed a 90-day moratorium on residential evictions. Id. at *3. Then, on May 7, 2020, EO 202.28 permitted the application of security deposits toward rents due while "temporarily prohibit[ing] landlords from initiating eviction proceedings against tenants who are facing financial hardship due to the pandemic." Elmsford Apartment Assocs., LLC v. Cuomo , 469 F. Supp. 3d 148, 155 (S.D.N.Y. 2020). That order emanated from a legislative enactment empowering the Governor to "temporarily suspend any statute, local law, ordinance, or order, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster." Id. at 156 (quoting N.Y. Exec. Law Art. 2-B § 29-a).

EO 202.28 extended the eviction moratorium through August 2020. Id. at 159. On June 6, 2020, the Governor issued EO 202.38, which extended certain portions of the earlier order, but did not affect the termination date set for the eviction moratorium. Id. The EOs did not address actions filed prior to their enactment, although "as a practical matter, there was not much that a landlord could do to prosecute an ongoing proceeding, as the New York State courts were closed." Id.

On June 30, 2020, the Tenant Safe Harbor Act was enacted. 2020 N.Y. Laws ch. 127; Docket Entry ("DE" 14-6). That act prohibited courts from issuing eviction warrants or possessory judgments through the end of the "COVID-19 covered period" – defined, through a series of incorporated executive orders, as the period from March 7, 2020 until the date on which businesses were permitted to reopen and restrictions on gatherings ceased. Id. Under the TSHA, a tenant could "raise financial hardship during the COVID-19 covered period as a defense" in a subsequent eviction proceeding, allowing courts to consider a broad array of factors in making such a determination. Id.

TSHA would remain on the shelf, though, because on December 28, 2020, the Governor signed into law the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (bearing the unmellifluous acronym CEEFPA). DE 1-1, Compl., Ex. A. In passing this law, the legislature clearly set forth its intent:

Stabilizing the housing situation for tenants, landlords, and homeowners is to the mutual benefit of all New Yorkers and will help the state address the pandemic, protect public health, and set the stage for recovery. It is, therefore, the intent of this legislation to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19.

As such, it is necessary to temporarily allow people impacted by COVID-19 to remain in their homes. A limited, temporary stay is necessary to protect the public health, safety and morals of the people the Legislature represents from the dangers of the COVID-19 emergency pandemic.

2020 N.Y. Laws ch. 381, § 3. CEEFPA extended the eviction moratorium and provided more detailed procedures.² It created a "hardship declaration" – in language prescribed by statute and annexed as Exhibit A – which, when executed by a tenant, would stay any eviction proceeding (even those filed before the pandemic), prevent the filing of a new proceeding and stay the execution of any eviction warrant pending the expiration of the Act's provisions. Id. Part A, §§ 5-8. The Act directs that any existing default judgment be "removed" and the matter restored to the court calendar. Id. § 7. With one notable exception, the statute's provisions were set to expire on May 1, 2021. Id. § 13.

That exception is contained in Part A, § 11. According to that provision, the execution of a hardship declaration creates a rebuttable presumption that the tenant is experiencing such a hardship. Id. This presumption could be used in support of a defense that may be considered by judges hearing eviction cases. Id.

In response to CEEFPA, the individual plaintiffs in this case commenced an action challenging its constitutionality. Chrysafis v. James , No. 21-CV-998 (JS), 2021 WL 1405884 (E.D.N.Y. Apr. 14, 2021). As here, plaintiffs raised a sheaf of constitutional challenges to Part A of the statute and sought preliminary injunctive relief against the State Attorney General. Id. at *11-12. Judge Seybert determined that the Attorney General is not responsible for enforcing the statute and dismissed the case. Id. at *22.

In a bill dated April 23, 2021, and subsequently signed into law, the legislature extended the moratorium to August 31, 2021. 2021 N.Y. Laws ch. 104; DE 40-4. The express justification for this extension was as follows:

Current data demonstrates the need for continuing emergency public health measures in New York. According to the CDC, New York's current rates of COVID-19 transmission are among the highest in the nation. In its weekly data summaries, the CDC classifies transmission rates as "high" if there are 100 or more new cases per 100,000 people. As of April 15, 2021, the statewide rate in New York was 233 per 100,000 people. In its March 28, 2021 Order, the CDC stated that 37% of counties nationally had a high rate of transmission and an additional 30% had a "substantial" rate (50-99.9 cases per 100,000 people). As of April 15, 2021, CDC data show that 87% of counties in New York -- 54 of 62 counties, including all of the state's most populous counties -- had a high rate of transmission and all of the other eight counties had a substantial rate of transmission. No county in New York had a "moderate" or "low" rate.

DE 40-4 at 18. The legislature further referenced a March 28, 2021 Order from the CDC extending national restrictions on residential eviction through June 30, 2021, an Order observing "that evictions substantially contribute to COVID-19 transmission." Id. at 17.

In response, plaintiffs filed the instant § 1983 action, again seeking preliminary and permanent injunctive relief as against CEEFPA.³ DE 1. The Court held a preliminary injunction hearing on June 1, 2021, at which two plaintiffs and an administrative officer of the Housing Court testified.

B. Facts Established by Plaintiffs

The five plaintiffs – Pantelis Chrysafis, Betty Cohen, Brandie LaCasse, Mudan Shi and Feng Zhou⁴ – are landlords with modest holdings. Each has faced significant hardship as a result of the state moratorium on evictions:

Chrysafis bought a home in Garden City, NY in December 2015. Vekiarellis Decl., DE 13, ¶ 1. Marital separation a few months later led him to put it on the market, but after six months, he decided to rent the property to help meet...