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Landlords Sued NYS Eviction Pause On 1st Amendment But SDNY Judge McMahon Says No

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, June 29 – After New York State Governor Andrew Cuomo issued an Executive Order suspending some eviction cases, Westchester County based landlord Elmsforth Apartment Associates, LLC filed a Constitutional lawsuit in the U.S. District Court for the Southern District of New York.

Some time later they sought a Temporary Restraining Order.  

 The case was assigned to SDNY Chief Judge Colleen McMahon who held a proceeding on June 5. Inner City Press covered it, see below.
  On June 24
Chief Judge McMahon held an oral argument, at which the First Amendment played an unexpectedly large role. Plaintiff's counsel Mark A. Guterman said he is more of a landlord - tenant lawyer. Judge McMahon replied that in the past she had been such a lawyer, albeit in the commercial context, and got to know the metropolis. She said, if you represent a landlord and he or she has a Constitutional claim, you pursue it.
  Judge McMahon peppered Guterman with questions, about being able to recoup past rent, about security deposits, about limiting his arguments to the Governor's executive order, not decisions of the NYS courts. Ultimately she asked both sides for letter briefs on the First Amendment issues. Inner City Press will continue to cover this case.

Back on June 5 Chief Judge McMahon started by saying she would  not be issuing a Temporary Restraining Order, asks why the landlords waited 4 weeks.  Judge McMahon suggested converting the motion for a TRO into a motion for summary judgment. 

 And now on June 29, Judge McMahon's ruling starting: "At issue here is the Governor’s Executive Order 202.28, “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency,” issued May 7, 2020 (the “Order” or “EO 202.28”)... Three residential landlords – Plaintiffs Elmsford Apartment Associates, LLC; 36 Apartment Associates, LLC; and 66 Apartment Associates, J.V. (“Plaintiffs”) – ask this Court to enjoin EO 202.28 on the grounds that the Order violates their rights under the US Constitution’s Contracts Clause, Takings Clause, Due Process Clause and Petition Clause.  While the Plaintiffs initially sought only a temporary restraining order and preliminary injunction, the parties agreed that Plaintiffs’ challenge turns entirely on legal issues that required no discovery and could be resolved on cross-motions for summary judgment. After an expedited briefing schedule, the Court heard oral argument via telephone conference on June 24, 2020. For the following reasons, Plaintiffs’ motion for summary judgment is denied, and Defendant’s motion for summary judgment dismissing this action is granted."

The case is Elmsford Apartment Associates, LLC et al. v. Cuomo, 20-cv-4062 (McMahon).


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