Three entities that own residential rental properties in Westchester have filed suit in U.S. District Court in White Plains seeking to nullify provisions of an executive order issued by Gov. Andrew M. Cuomo concerning tenant evictions. The order was one of a number issued by Cuomo as part of the response to the COVID-19 outbreak.
The plantiffs object to Cuomo’s action on May 7 that extended for 60 days through Aug. 19 a previous moratorium that had banned residential and commercial tenant evictions until June 20. Executive Order 202.28 also gave tenants the right to have a landlord use any security deposits and accrued interest to pay rent that is in arrears or may become due.
The plaintiffs are identified as Elmsford Apartment Associates LLC, 36 Apartment Associates LLC and 66 Apartment Associates J.V. All three have their principal place of business in Westchester.
Elmsford Apartment Associates is the fee owner of residential rental properties at 7 Paulding St. and 37 N. Hillside Ave. in Elmsford containing a combined 29 units.
36 Apartment Associates is the fee owner of the residential rental properties at 344 Irving Ave., 350 Irving Ave., 171 Rectory St., 42 Armett St. and 58 Prospect St. in Port Chester, which have a combined total of 36 units.
66 Apartment Associates is the fee owner of 45 condominium units in the Park Crest West Condominium at 66 Caryl Ave. in Yonkers. It rents the units to residential tenants.
The plaintiffs claim that the governor’s executive order violates the U.S. Constitution on the grounds that it improperly interferes with their contract and due process rights and constitutes an improper taking of their property.
The lawsuit quotes the order as saying, in part: “There shall be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent … rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020.”
The lawsuit claims that by effectively precluding any eviction proceeding against any residential tenant based upon nonpayment of rent through Aug. 19, the executive order has given carte blanche to tenants to withhold rent without immediate repercussion.
“Plaintiffs and all similarly situated landlords are precluded from asserting their rights and obtaining relief to protect their property, all the while remaining obligated to pay all of their own carrying costs and other expenses, including taxes to the various governmental divisions of New York State,” the lawsuit states.
It also states that the executive order abrogates the plaintiffs’ contractual rights in that it permits the tenants to unilaterally violate the terms of a lease without the plaintiffs’ consent, and requires that upon the tenant’s request, the plaintiffs must apply the security deposit to pay rent.
The lawsuit states that the executive order thus removes the contractual protection set forth in the leases by removing the security deposit as the primary source the plaintiffs can use to be compensated for damages that tenants might cause to the properties.
It also states that Cuomo’s order allows tenants to replenish security deposits used for rent in monthly one-twelfth increments. The lawsuit states that’s insufficient to protect the plaintiffs and notes that replenishment does not even have to begin until 90 days after the security deposit has been used to pay rent.
The lawsuit states that the goal of protecting tenants unable to pay their rent from being evicted could have been achieved by less intrusive means. It said that the courts could have been permitted to hear each case on its own merits and fashion appropriate relief, protecting tenants from immediate eviction but also providing protection to landlords from excessive periods of nonpayment. It also suggested that tenants could be provided with the means to pay rent without requiring landlords to bear the burden and threat of significant nonpayment of rent.
The executive order “creates a palpable and immediate threat” to the ability of the plaintiffs to maintain their ownership interest in their properties and meet their own obligations by threatening “the ongoing income stream of rent.” It also alleges that the order deprives them of the “full value of their property.”
The lawsuit seeks a number of actions from the court, some of which are: to enjoin the implementation and enforcement of the executive order; award the plantiffs at least nominal damages; award reasonable counsel fees, costs and expenses; and declare that the plantiffs’ Constitutional rights were violated.
The lawsuit was filed by attorney Mark A. Guterman of the White Plains law firm Lehrman, Lehrman & Guterman LLP.