Westchester Landlord Group Files Suit Against Governor’s Exec. Order Extending Eviction Ban

John Jordan | June 2020

Gov. Cuomo extended earlier this month the Executive Order placing a moratorium on residential and commercial leases until Aug. 20.

WHITE PLAINS—A group of Westchester landlords who own rental properties in Elmsford, Port Chester and Yonkers filed suit on May 25 in U.S. District Court for the Southern District in White Plains against Gov. Andrew Cuomo for his extension of regulations that prohibits landlords from initiating or continuing residential evictions.

The suit also contests the governor’s Executive Order that requires landlords to apply security deposits to unpaid rent upon the sole request of the tenant. The Executive Order extended the prohibition of residential and commercial evictions from June 20, 2020 for another 60 days until August 20, 2020. The original order went into effect on March 20. The litigation against Gov. Cuomo was filed by residential landlords.

The plaintiffs charge that the orders violate their constitutional and due process rights. In the suit, the landlords charge that the order creates “a procedural taking, in that the order limits the plaintiffs’ rights over their own properties” and continues “an actual, state-sponsored occupancy of the plaintiffs’ property.”

The three litigants—Elmsford Apartment Associates, LLC; 36 Apartment Associates, LLC and 66 Apartment Associates, LLC were not fully identified in the court action or by their attorney Mark A. Guterman, a partner in the White Plains-based law firm Lehrman, Lehrman & Guterman, LLP.

In court papers, Elmsford Apartment Associates is described as the owner of rental properties containing a combined 29 units at 7 Paulding St. and 37 North Hillside Ave. in Elmsford. The entity 36 Apartment Associates is the fee owner of residential rental properties at 344 Irving Ave., 350 Irving Ave., 171 Rectory St., 42 Arnett St. and 58 Prospect St. in Port Chester. The five properties contain a total of 36 residential rental units. The remaining litigant, 66 Apartment Associates is the fee owner of 45 condominium units at the Park Crest West Condominium at 66 Caryle Ave. in Yonkers.

“The order has given carte blanche to tenants to withhold rent without immediate repercussion,” the plaintiffs charged in court papers.

Guterman in a telephone interview with Real Estate In-Depth, said, “With the (court) filing we hope to get the attention of the governor. We don’t want wholesale eviction of tenants, nobody wants that. But, what we want principally is that the rights of the landlords under their leases and under the law be respected.”

He added, “There is no other industry in which private parties are told you bear the burden of society and we the government are not going to help you out.”

While citizens and other businesses can make applications for COVID-19-related relief, the landlord’s tax and other business obligations remain intact. “It’s not fair, it’s not constitutional,” Guterman charged.

The New York State Attorney General’s office was contacted prior to the filing of the court action, Guterman said, but to date the state had not responded.

Officials with the New York State Attorney General and the governor’s office did not respond to a request for comment by Real Estate In-Depth at press time.

In court papers, the plaintiffs charge that the necessary tenant protections could have been achieved by the state through other means, including: “permitting the judges of the New York courts to fashion resolutions that provide for the payment of arrears by tenants over a period of time commensurate with the circumstances, while at the same time protecting landlords as to on-going rent; and/or arranging for the payment of rent directly to landlords in place of a part of the stimulus payments and other loan programs.”

John Jordan
Editor, Real Estate In-Depth