Supreme Court Blocks New York Eviction Moratorium

Says ban deprives landlords without due process

The Supreme Court / Getty Images
August 13, 2021

The Supreme Court on Thursday night blocked part of New York state’s COVID-19-related eviction moratorium at the behest of a group of landlords who say they cannot sustain its fiscal toll.

In a brief statement, the High Court said the moratorium appeared to deprive the landlords of their property without due process. The Court’s statement was unsigned and did not include a vote count, as is typical of such matters, but Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan noted their dissent.

The emergency appeal highlighted the ongoing strain landlords face even as much of the nation returns to a pre-pandemic state of affairs. Lawyers for the landlords described them as "small scale property owners" in court filings and emphasized that the moratorium has left them in dire financial straits.

Two of the applicant landlords are Mudan Shi and Feng Zhou, a married couple who rent the single-family house they own on Staten Island. Income from that property helps cover rent for the leased home they occupy with their children and elderly parents. Their Staten Island tenants have not paid rent since 2019 because of a dispute that is not COVID-related. Shi and Zhou can no longer afford their lease. Another landlord, Betty Cohen, is a retiree whose income consists of Social Security benefits and the rent she collects off a single co-op unit in Brooklyn. Cohen’s tenant stopped paying rent in March 2020 and owes her almost $25,000.

Thursday night’s decision will not necessarily result in the eviction of their tenants. It would merely allow them to make a case for eviction to a housing court, which may or may not succeed. Absent that opportunity, lawyers for the landlords argued the moratorium deprives them of their property without due process, a violation of the Constitution. Under the New York scheme, a tenant’s declaration of COVID-related hardships on a state form delayed eviction proceedings until the moratorium expires.

"The owner’s hands are completely tied: Tenants are not required to submit any proof of their claimed hardships, and applicants and other property owners are given no opportunity to present contrary evidence," the application reads.

For example, landlord Brandie LaCasse owns a single-family house in Rhinebeck, N.Y., occupied by tenants who are withholding rent. The tenants claim they aren’t paying because of a child care hardship. LaCasse and her lawyers have evidence that explanation is untrue, but the moratorium makes the claim unrebuttable. In the meantime, the property is falling into disrepair due to the tenants’ poor stewardship, exacerbating the financial damage, LaCasse’s lawyers wrote in court filings. LaCasse herself is living with an ex-fiancée who wants her to leave.

"I need to leave where I’m currently staying. My ex wants me out of the house, and I don’t really have anywhere to go and I’m trying to get my house back," she testified at an emergency hearing in June.

The Court credited those arguments in a short statement about the decision.

"This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the due process clause," the order reads.

In dissent, Breyer argued the Court should grant such "drastic relief" only if it was "indisputably clear" that the moratorium is unconstitutional. He also noted it is set to expire on Aug. 31.

"The New York Legislature is responsible for responding to a grave and unpredictable public health crisis. It must combat the spread of a virulent disease, mitigate the financial suffering caused by business closures, and minimize the number of unnecessary evictions," Breyer wrote.

"The legislature does not enjoy unlimited discretion in formulating that response, but in this case I would not second guess politically accountable officials’ determination of how best to guard and protect the people of New York," he added.

A 5-4 Court in June refused to suspend the federal eviction moratorium. The New York landlords said their case is different because they have identified the specific and significant monetary harms they have incurred, while the landlords in the June case "made only conclusory reference to general financial harms."

The practical effect of Thursday night’s decision isn’t clear because the federal moratorium remains in place. And the Court itself noted that New York state has a second law that directs judges to consider COVID-related hardships in eviction proceedings.

The case is No. 21A8 Chrysafis v. Marks.