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New York Judges Are Watering Down Protections Against Evictions

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This story originally appeared in <a href="https://nysfocus.com/2022/07/19/judges-watering-down-eviction-protections-for-lawful-occupants">New York Focus</a>, a nonprofit news publication investigating power in New York. <a href="https://nysfocus.com/newsletter?utm_source=partner&utm_medium=website" target="_blank">Sign up for their newsletter here</a>.<hr>NEW YORK STATE · July 19, 2022
<h1>New York Judges Are Watering Down Protections Against Evictions</h1>
<h2>For housing advocates, getting the legislature to expand the right to a court hearing before evictions was one thing. Getting judges to implement it is another.</h2>
<h3>By <a class="yellow-underline" href="https://nysfocus.com/author/sam-mellins">Sam Mellins</a> , New York Focus</h3><figure><img src="https://imgproxy.gridwork.co/OlUyWv6KmBqgDCkxroI5dg0DgnZ9T6OnitkuN3zEe0E/w:820/h:546/rt:fill/g:fp:0.5:0.5/q:90/el:1/aHR0cHM6Ly9zMy51cy1lYXN0LTIuYW1hem9uYXdzLmNvbS9ueXNmb2N1cy9Ccm9ueC1Db3VudHktSG91c2luZy1Db3VydC5qcGVn.jpeg" alt="" /><figcaption>The states judiciary is split on how to interpret eviction protections in New York's landmark 2019 rent reforms. / Danielle Dawson</figcaption></figure><div>In June 2019, the New York legislature passed a <a href="https://www.nysenate.gov/legislation/laws/RPA/711">law</a> expanding protections against evictions. Three years later, housing advocates say that the law is being rolled back by judges who are determined to read it as narrowly as possible. 
The law, part of a <a href="https://hcr.ny.gov/system/files/documents/2020/02/rent-regulation-hstpa-presentation.pdf">landmark rent reform package</a>, expanded the category of people who had a right to a court hearing before being evicted.  
Before 2019, tenants had that right, but the law didn’t specify whether it extended to legal occupants without formal tenant status, like roommates, family members, and patients in residential addiction treatment programs. 
That meant that landlords could evict those non-tenant residents without notice and without giving a reason. When residents tried to challenge the evictions, many judges would toss their suit out of court. 
Legislators included a provision in the 2019 rent reforms to change that, specifying that all “lawful occupants,” not just formal tenants, had the right to a court hearing before being evicted.  
But three years out, housing court judges can’t agree on how to read that provision, and many judges continue to rule that non-tenant occupants do not have the right to sue landlords for evicting them without a court date. 
As a result, evictions without court proceedings remain common. There’s no data on those evictions, since they’re mostly unreported, but Michael Grinthal, director of housing rights at TakeRoot Justice, estimated that there are thousands of such cases a year statewide. 
The law hasn’t entirely been a dead letter. Several housing court judges <a href="https://law.justia.com/cases/new-york/other-courts/2020/2020-ny-slip-op-50424-u.html">have</a> <a href="https://caselaw.findlaw.com/ny-civil-court/1909395.html">found</a> that the 2019 change allows non-tenants to sue for illegal evictions, and have ordered landlords to allow the evictees to return. In one <a href="https://law.justia.com/cases/new-york/other-courts/2020/2020-ny-slip-op-50424-u.html">ruling</a>, a Bronx judge said that an argument that a non-tenant resident wasn’t entitled to a court hearing before being evicted was “not persuasive since the passage of the HSTPA,” the acronym for the 2019 law.  
But the law hasn’t provided the blanket protections that housing advocates hoped for. In 2021, a state appeals court—the highest court to deal with the issue thus far—<a href="https://law.justia.com/cases/new-york/appellate-term-second-department/2021/2021-ny-slip-op-50089-u.html">ruled</a> that someone who wasn’t a tenant was not entitled to a hearing before being evicted.  
“It’s been a mix,” said Ellen Davidson, staff attorney at the Legal Aid Society. “Different people in the same category get treated differently depending on which judge you go in front of.” 
A successful appeal 
In November 2015, Cedric Steed was evicted from his room at a supportive living facility in Brooklyn run by the Acacia Network, a non-profit affordable and supportive housing provider. 
Steed and other residents of the facility were given no notice that they were being evicted, he said, and no chance to contest their eviction in court. 
He was told that if he wanted to collect his belongings, he had to get them that same day. He was on his way to his family in Long Island for Thanksgiving, but turned back to collect his possessions, and moved from the facility into a dormitory-style homeless shelter in Jamaica, Queens. 
The difference between the facility and the shelter was “night and day,” Steed told New York Focus. The privacy and relative freedom that he had at the supportive living facility were gone, replaced by a congregate shelter environment with a tight and rigid schedule. 
In the wake of their eviction, several of the residents of the facility sued Acacia to be allowed to return, claiming that their eviction was illegal, since they never got a chance to contest it in court.  
One of the evictees won his case in a Brooklyn civil court, but Acacia appealed the ruling, and got the decision reversed. In <a href="https://law.justia.com/cases/new-york/appellate-term-second-department/2018/2018-ny-slip-op-28026.html">Andrews v. Acacia</a>, a state appeals court found that Hercules Andrews, one of the men who had been locked out of his room at Acacia’s facility, had no right to sue for an illegal eviction since he wasn’t a tenant. 
Asked for comment on the suit, a spokesperson said that Acacia “abides by program rules and regulations to provide services to clients in support of their recovery goals, while ensuring the continued health and safety of other program participants and staff; eviction is always a last resort.” 
The ruling raised housing advocates’ fears that other judges would stop ruling in favor of non-tenant occupants who claimed they had been illegally evicted. In response, they lobbied Albany lawmakers to expand protections for such occupants.  
That led to the 2019 tenant protection laws adding “lawful occupants” to the category of people who had the right to a court proceeding before being evicted. The measure was added to the legislative package thanks to an agreement between the state Senate and state Assembly to include at least one measure meant to benefit unregulated tenants, Davidson said. 
Tenant advocates involved in crafting the provision didn’t think it would be a panacea, since rights on paper aren’t always respected in practice. (Across the state, landlords almost never face charges for <a href="https://nysfocus.com/2021/10/21/illegal-evictions-are-rising-across-the-state/">illegally evicting tenants</a>, New York Focus reported last year.) But they did expect it to reverse Andrews. 
“The language was intended to overturn that case,” Davidson said. “It was supposed to mean that landlords would have to go through a legal process before evicting people.” 
A day in court? 
But so far, the state’s judiciary is split on how to interpret the law. While some judges have ruled that it does protect residents who aren’t tenants, others have continued referring to Andrews to prove that only tenants have the right to contest evictions in court. 
In February 2021, the same appeals court that decided Andrews <a href="https://law.justia.com/cases/new-york/appellate-term-second-department/2021/2021-ny-slip-op-50089-u.html">found</a> in a case called Zhu v. Li that even after the 2019 change to the law, non-tenant occupants had no legal standing to sue landlords for illegally locking them out.  
Since February 2021, several other lower courts have cited Zhu to support similar rulings.  
One <a href="https://law.justia.com/cases/new-york/other-courts/2021/2021-ny-slip-op-21208.html">ruling</a> in a Queens court said that while there is a “potentially expansive interpretation” of who can sue landlords for illegal evictions according to the 2019 law that could include non-tenant residents, Zhu v. Li and other cases issued since the law went into effect mean that that reading is incorrect. 
Another ruling, in a Brooklyn court, noted that Zhu “is binding upon this court,” and so declined to restore a non-tenant resident to the house they’d been evicted from. 
Even before Zhu, some judges were using narrow interpretations of the law to rule in favor of landlords. In a 2020 case in Bronx housing court, Judge Diane Lutwak wrote that while 2019 law “appears to establish” a prohibition against evicting non-tenant residents without a court proceeding, that appearance was in fact deceptive.  
This was because the legal change meant to protect non-tenant occupants was inserted into a <a href="https://www.nysenate.gov/legislation/laws/RPA/711">law</a> whose heading specified that it referred to cases “where [a] landlord-tenant relationship exists,” Lutwak reasoned. Even though the text of the law says that “no tenant or lawful occupant” can be evicted without legal process, that sentence “must be read in its context, which is a paragraph that defines who is a ‘tenant,’” Lutwak wrote. 
Grinthal rejected this interpretation, since tenants were already protected from unilateral evictions before the 2019 law.  
“One thing that judges are supposed to assume is that the legislature did something when it passed the law,” he said. “If you interpret it to say that the legislature put these words down on paper and voted on it, but it has no effect at all, then that’s the wrong interpretation.” 
The appeals court that decided Andrews and Zhu is the highest to rule on the matter so far. The issue could still go to one of the state’s four higher regional appeals courts, or the Court of Appeals, New York’s high court, but getting an illegal eviction case before one of the state’s higher level courts is difficult. 
“People who are locked out don’t wait around for the year it might take for a case to go to appeal and get decided on,” Grinthal said. If an evictee attempts to appeal a case but they’ve found another housing option in the meantime, a court can say that the issue is moot and decline to hear the case. 
Failed deterrence 
Since the judiciary seems unlikely to give the 2019 law the teeth that housing advocates hoped it would have, the legislature may need to act again if it wants to clarify that non-tenants are included in the law’s protections, Davidson said.  
There aren’t any bills on this issue currently being considered, Grinthal said, and the chairs of the Senate and Assembly housing committees did not respond to questions on whether they would consider introducing such measures.  
A partial legislative fix may be in the works in New York City. Councilmember Sandy Nurse, who represents Bushwick and other north Brooklyn neighborhoods, is working on a bill that would bar landlords who are found to engage in illegal evictions from receiving city subsidies or tax incentives. Since some judges do find that non-tenant evictions can be illegal, the law could help deter those evictions. 
“This is absolutely a priority for us. And it's emerged as a priority because we see a number of illegal evictions happening in our district all the time,” Nurse told New York Focus. 
Steed, who moved out of the Queens shelter and now lives in a different supportive housing facility, also said he’d like to see more protections for others in the situation that he faced in 2015. 
“There needs to be protections from the court, 311, housing, or something that can tell a landlord, ‘No, this is what you got to do. You can’t come and tell them that they have to leave. You have to go to court,” he said.</div>	 
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