Chrysafis v. Marks
| Decision Date | 29 November 2021 |
| Docket Number | 21-cv-2516 (GRB) |
| Parties | PANTELIS CHRYSAFIS, 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 Courts of New York State, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Before the Court is an application by plaintiffs for preliminary injunctive relief aimed at New York's COVID-19 eviction moratorium, the second such application in this case. The instant motion seeks injunctive relief as to an amended version of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA). That amendment extended the eviction moratorium and made changes intended to address a determination of the United States Supreme Court that the earlier provision violated the Due Process Clause of the United States Constitution. The amended statute provides several avenues for landlords to challenge statutorily-created “hardship declarations” filed by their tenants and seek judicial relief notwithstanding the filing of such declarations.
In an amended complaint, plaintiffs contend that the procedures made available by the new statute are illusory, as they cannot gather and aver to the requisite information to challenge a hardship declaration filed by a tenant. At this stage, it appears that the procedures provided by the statute are quite real; plaintiffs' argument is not only chimerical, but disingenuous. Following a full evidentiary hearing at which the three plaintiff-landlords testified, the facts demonstrate that these plaintiffs (a) have made no attempt to challenge the hardship declarations filed by their tenants and/or (b) have other avenues available to effect an eviction which they have failed or opted not to pursue. Moreover examination of caselaw applying the amended statute reveals that courts have afforded hearings and made discovery devices available to permit similarly-situated landlords to meaningfully challenge hardship declarations. Thus, while the remedies implemented by the legislature may be imperfect there has been no showing, at this juncture, that would entitle plaintiffs to the extraordinary remedy of a preliminary injunction.
Much of the burgeoning procedural history of this case is contained in Chrysafis v. Marks (“Chrysafis I”), 2021 WL 2405802 (E.D.N.Y. June 11, 2021), which is incorporated herein by reference. On June 11, 2020, this Court issued an opinion denying, after an evidentiary hearing, the initial preliminary injunction application. Chrysafis I, 2021 WL 2405802, at *15. As the merits had been consolidated with consent of the parties, id. at *14, the Court entered judgement on June 14, 2021. DE 75. The Second Circuit described the appellate developments that followed:
On the same day, the Landlords sought an injunction pending appeal, which the District Court denied on June 16. After filing a notice of appeal, the Landlords, on June 18, sought from this Court an order expediting the appeal and an injunction pending appeal to prevent enforcement of the COVID-19 Emergency Eviction Moratorium Act of 2020. On June 26, this Court denied the motion for an injunction pending appeal.
Chrysafis v. Marks, 15 F.4th 208, 212 (2d Cir. 2021) (the “Remand Order”). On August 12, 2021, in response to an “Emergency Application for Writ of Injunction, ” the Supreme Court issued an noting “[t]hat is the only relief applicants seek.” Chrysafis v. Marks, 141 S.Ct. 2482 (2021). Subsequent to the Supreme Court's determination, on August 31, 2021, plaintiffs made “an attempt to challenge the new residential eviction moratorium, which is Subpart A of Part C (‘Subpart C(A) 2021') of 2021 N.Y. Laws Ch. 417 (S50001), enacted on Sept. 1, 2021, after several provisions of the old moratorium statute expired on Aug. 31, 2021” before the Second Circuit Court of Appeals. Remand Order, 15 F.4th at 210. Given the expiry of the old statute, the Court of Appeals “conclude[d] that Plaintiffs' due process claims are moot, that we should dismiss them, and . . . that we should remand the entire case to the District Court. . . . with leave for the parties to amend their pleadings and for reconsideration in light of the intervening changes in New York law.” Id. at 211, 216. On October 15, 2021, plaintiffs accepted the invitation of the Court of Appeals to file an amended complaint challenging the CEEFPA extension and amendment. DE 83. The new complaint rests on the assertion, made on behalf of each of the remaining plaintiffs, [1] that:
[a]lthough the Extension purports to allow landlords to contest hardship claims if they are first able to swear, under penalty of perjury, to a good-faith belief that those claims are false, this “process” is illusory because landlords typically lack access to the information necessary to make such an attestation.
DE 83 at 4. Along with the amended complaint, plaintiffs filed their motion for a preliminary injunction, and additional filings were made by plaintiffs, defendant and several potential intervenors (ultimately deemed to be amicus submissions). See DE 85-92, 98-111, 114-28.
Two other procedural developments bear noting. The first concerns the status of the Rent Stabilization Association (“RSA”) as a plaintiff in this action. This Court dismissed the claims of RSA, finding that the organization “lacks standing to bring this case, ” but welcomed its submissions as an amicus. Chrysafis I, 2021 WL 2405802, at *3 n.3. The Second Circuit recognized this determination, which was not appealed. Remand Order, 15 F.4th at 210 n.2.
Undaunted, counsel for plaintiffs, without leave of this Court or the Circuit, reintroduced the RSA as a plaintiff in the amended complaint. DE 83.[2]
The second development concerns the Dutchess County Sheriff's Office, originally a defendant in this action, which was dismissed upon certain representations made during the litigation. After review of the preliminary injunction submissions, the Court issued the following show cause order:
the Court has considered with some concern the assertions set forth in the LaCasse Affidavit, DE 87, in which plaintiff LaCasse avers that the Dutchess County Sheriff's Office "refused to honor the default judgment and refused to evict my tenants." Para. 18 (), 19, Ex. B (email from Sheriff's Office taking legal positions regarding court process). In its Order, this Court exercised its discretion to dismiss the case as against the Dutchess County Sheriff and other sheriffs' offices because the "only evidence of record demonstrates that these defendants have not refused any requests to serve a warrant." Chrysafis v. Marks, No. 21-CV-2516 (GRB), 2021 WL 2405802, at *14 (E.D.N.Y. June 11, 2021). However, in light of the evidence presented by plaintiff LaCasse, counsel for the Dutchess County Sheriff shall show cause in a written submission (including sworn declarations as necessary) to be filed on or before October 27, 2021, why the Court should not reconsider its determination to dismiss the action as against the Dutchess County Sheriff or whether it will, in fact, execute the subject state court process.
Electronic Order dated 10/18/2021. After a substantial response from the Dutchess County Sheriff, DE 106, plaintiffs' counsel was directed to respond. Electronic Order dated 10/28/2021. In that response, counsel represented that “Plaintiffs take no position as to whether the Sheriff should remain a defendant in this case . . . .” DE 110. As plaintiffs sought no relief despite being invited to do so, the Court declined to reconsider its earlier order dismissing the Sheriff. DE 127; DE 132-1 (Hrg. Tr.) at 190.
The Court held an evidentiary hearing on November 8, 2021. DE 128. The parties filed post-hearing submissions. DE 130-32. This opinion follows.
This Court has previously made copious findings of fact, which are incorporated herein by reference. See generally Chrysafis I. At the preliminary injunction hearing, several witnesses were called to testify:
Plaintiff Chrysafis and Witness Vekiarellis
Plaintiff Pantelis “Lee” Chrysafis, owner of a home in Garden City, New York, testified via virtual technology that he purchased that residence in 2015 with his former wife. Tr. 5-8. After he began having marital difficulties, he turned the residence over to his cousin, Peter Vekiarellis, who acted as a property manager to lease the house. Tr. 8. Chrysafis lives with his parents, while his current wife and one-year-old child reside in Japan. Tr. 9. Chrysafis reports suffering from mental health issues which, he claims, have been exacerbated by the difficulties associated with efforts to reclaim his property. Tr. 7.
Chrysafis testified that he is aware that his tenants filed a hardship declaration, but contends that he has no insight into the tenants' financial situation. Tr. 12-14.[3] At the same time Chrysafis effectively disavowed knowledge of the rental situation, as his cousin Vekiarellis “handles everything in relation to [the] property.” Tr. 17-18. In terms of ability to pay, Chrysafis was aware that one tenant (later revealed to be Jeffrey Coyne) had a sizable pension and owned a limousine business. Tr. 19, 38. Furthermore, Chrysafis was aware that the tenant largely paid the $5, 000 monthly rent until well into 2018, but stopped paying upon being advised, in 2019, that the house was being sold. Tr. 19. In other words, the default happened “well before the pandemic.” Tr. 20. The default led to a settlement involving payment of $25, 000 in back rent in late 2...
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