MEMORANDUM AND ORDER Before the Court is an application by plaintiffs for preliminary injunctive relief aimed at New York’s COVID-19 eviction moratorium, the second such application in this case. The instant motion seeks injunctive relief as to an amended version of the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA). That amendment extended the eviction moratorium and made changes intended to address a determination of the United States Supreme Court that the earlier provision violated the Due Process Clause of the United States Constitution. The amended statute provides several avenues for landlords to challenge statutorily-created “hardship declarations” filed by their tenants and seek judicial relief notwithstanding the filing of such declarations. In an amended complaint, plaintiffs contend that the procedures made available by the new statute are illusory, as they cannot gather and aver to the requisite information to challenge a hardship declaration filed by a tenant. At this stage, it appears that the procedures provided by the statute are quite real; plaintiffs’ argument is not only chimerical, but disingenuous. Following a full evidentiary hearing at which the three plaintiff-landlords testified, the facts demonstrate that these plaintiffs (a) have made no attempt to challenge the hardship declarations filed by their tenants and/or (b) have other avenues available to effect an eviction which they have failed or opted not to pursue. Moreover, examination of caselaw applying the amended statute reveals that courts have afforded hearings and made discovery devices available to permit similarly-situated landlords to meaningfully challenge hardship declarations. Thus, while the remedies implemented by the legislature may be imperfect, there has been no showing, at this juncture, that would entitle plaintiffs to the extraordinary remedy of a preliminary injunction. A. Procedural History Much of the burgeoning procedural history of this case is contained in Chrysafis v. Marks (“Chrysafis I”), 2021 WL 2405802 (E.D.N.Y. June 11, 2021), which is incorporated herein by reference. On June 11, 2020, this Court issued an opinion denying, after an evidentiary hearing, the initial preliminary injunction application. Chrysafis I, 2021 WL 2405802, at *15. As the merits had been consolidated with consent of the parties, id. at *14, the Court entered judgement on June 14, 2021. DE 75. The Second Circuit described the appellate developments that followed: On the same day, the Landlords sought an injunction pending appeal, which the District Court denied on June 16. After filing a notice of appeal, the Landlords, on June 18, sought from this Court an order expediting the appeal and an injunction pending appeal to prevent enforcement of the COVID-19 Emergency Eviction Moratorium Act of 2020. On June 26, this Court denied the motion for an injunction pending appeal. Chrysafis v. Marks, 15 F.4th 208, 212 (2d Cir. 2021) (the “Remand Order”). On August 12, 2021, in response to an “Emergency Application for Writ of Injunction,” the Supreme Court issued an “order enjoin[ing] the enforcement of only Part A of [CEEFPA]. 2020 N. Y. Laws ch. 381,” noting “[t]hat is the only relief applicants seek.” Chrysafis v. Marks, 141 S. Ct. 2482 (2021). Subsequent to the Supreme Court’s determination, on August 31, 2021, plaintiffs made “an attempt to challenge the new residential eviction moratorium, which is Subpart A of Part C (‘Subpart C(A) 2021′) of 2021 N.Y. Laws Ch. 417 (S50001), enacted on Sept. 1, 2021, after several provisions of the old moratorium statute expired on Aug. 31, 2021″ before the Second Circuit Court of Appeals. Remand Order, 15 F.4th at 210. Given the expiry of the old statute, the Court of Appeals “conclude[d] that Plaintiffs’ due process claims are moot, that we should dismiss them, and…that we should remand the entire case to the District Court…. with leave for the parties to amend their pleadings and for reconsideration in light of the intervening changes in New York law.” Id. at 211, 216. On October 15, 2021, plaintiffs accepted the invitation of the Court of Appeals to file an amended complaint challenging the CEEFPA extension and amendment. DE 83. The new complaint rests on the assertion, made on behalf of each of the remaining plaintiffs,1 that: [a]lthough the Extension purports to allow landlords to contest hardship claims if they are first able to swear, under penalty of perjury, to a good-faith belief that those claims are false, this “process” is illusory because landlords typically lack access to the information necessary to make such an attestation. DE 83 at 4. Along with the amended complaint, plaintiffs filed their motion for a preliminary injunction, and additional filings were made by plaintiffs, defendant and several potential intervenors (ultimately deemed to be amicus submissions). See DE 85-92, 98-111, 114-28. Two other procedural developments bear noting. The first concerns the status of the Rent Stabilization Association (“RSA”) as a plaintiff in this action. This Court dismissed the claims of RSA, finding that the organization “lacks standing to bring this case,” but welcomed its submissions as an amicus. Chrysafis I, 2021 WL 2405802, at *3 n.3. The Second Circuit recognized this determination, which was not appealed. Remand Order, 15 F.4th at 210 n.2. Undaunted, counsel for plaintiffs, without leave of this Court or the Circuit, reintroduced the RSA as a plaintiff in the amended complaint. DE 83.2 The second development concerns the Dutchess County Sheriff’s Office, originally a defendant in this action, which was dismissed upon certain representations made during the litigation. After review of the preliminary injunction submissions, the Court issued the following show cause order: the Court has considered with some concern the assertions set forth in the LaCasse Affidavit, DE 87, in which plaintiff LaCasse avers that the Dutchess County Sheriff’s Office “refused to honor the default judgment and refused to evict my tenants.” Para. 18 (referencing default judgment issued on 9/21/21), 19, Ex. B (email from Sheriff’s Office taking legal positions regarding court process). In its Order, this Court exercised its discretion to dismiss the case as against the Dutchess County Sheriff and other sheriffs’ offices because the “only evidence of record demonstrates that these defendants have not refused any requests to serve a warrant.” Chrysafis v. Marks, No. 21-CV-2516 (GRB), 2021 WL 2405802, at *14 (E.D.N.Y. June 11, 2021). However, in light of the evidence presented by plaintiff LaCasse, counsel for the Dutchess County Sheriff shall show cause in a written submission (including sworn declarations as necessary) to be filed on or before October 27, 2021, why the Court should not reconsider its determination to dismiss the action as against the Dutchess County Sheriff or whether it will, in fact, execute the subject state court process. Electronic Order dated 10/18/2021. After a substantial response from the Dutchess County Sheriff, DE 106, plaintiffs’ counsel was directed to respond. Electronic Order dated 10/28/2021. In that response, counsel represented that “Plaintiffs take no position as to whether the Sheriff should remain a defendant in this case….” DE 110. As plaintiffs sought no relief despite being invited to do so, the Court declined to reconsider its earlier order dismissing the Sheriff. DE 127; DE 132-1 (Hrg. Tr.) at 190. The Court held an evidentiary hearing on November 8, 2021. DE 128. The parties filed post-hearing submissions. DE 130-32. This opinion follows. B. Facts This Court has previously made copious findings of fact, which are incorporated herein by reference. See generally Chrysafis I. At the preliminary injunction hearing, several witnesses were called to testify: Plaintiff Chrysafis and Witness Vekiarellis Plaintiff Pantelis “Lee” Chrysafis, owner of a home in Garden City, New York, testified via virtual technology that he purchased that residence in 2015 with his former wife. Tr. 5-8. After he began having marital difficulties, he turned the residence over to his cousin, Peter Vekiarellis, who acted as a property manager to lease the house. Tr. 8. Chrysafis lives with his parents, while his current wife and one-year-old child reside in Japan. Tr. 9. Chrysafis reports suffering from mental health issues which, he claims, have been exacerbated by the difficulties associated with efforts to reclaim his property. Tr. 7. Chrysafis testified that he is aware that his tenants filed a hardship declaration, but contends that he has no insight into the tenants’ financial situation. Tr. 12-14.3 At the same time, Chrysafis effectively disavowed knowledge of the rental situation, as his cousin Vekiarellis “handles everything in relation to [the] property.” Tr. 17-18. In terms of ability to pay, Chrysafis was aware that one tenant (later revealed to be Jeffrey Coyne) had a sizable pension and owned a limousine business. Tr. 19, 38. Furthermore, Chrysafis was aware that the tenant largely paid the $5,000 monthly rent until well into 2018, but stopped paying upon being advised, in 2019, that the house was being sold. Tr. 19. In other words, the default happened “well before the pandemic.” Tr. 20. The default led to a settlement involving payment of $25,000 in back rent in late 2019. By July of 2021, the tenants paid an additional sum as part of a negotiation to extend their stay and concurrently filed a hardship declaration. Tr. 25-26. He reports that his tenants are over $200,000 in arrears. Tr. 12. Chrysafis was repeatedly asked a conclusory question which became a mantra for plaintiffs’ counsel, to wit: “Would you be able to swear under penalty of perjury to a good faith belief that your tenants are not experiencing any financial hardship?” Tr. 12. Much to counsel’s frustration, Chrysafis provided varying answers to this inquiry. See, e.g., Tr. 13 (“Yes”), Tr. 14 (“I said I can’t swear because I don’t know”), Tr. 29 (“I’m not sure”), Tr. 30 (“Absolutely”), Tr. 33 (“I mean, I don’t know their financial status. So I could say that as far as I know they are not…I don’t know for sure”). But see Tr. 11-12 (Chrysafis testifying that he did not “know anything about [his] tenant’s current financial status”), Tr. 15 (counsel attempting to “clarify” his answer because Chrysafis “gave subsequent testimony that’s inconsistent” on this subject), Tr. 30-31 (Chrysafis testifying in a series of leading questions to a lack of knowledge concerning the specific categories of hardship on the declaration). This confused testimony stands in stark contrast to Chrysafis’s declaration, submitted in support of this motion and presumably prepared by counsel, in which he unequivocally asserts that he has “no way of knowing whether their hardship claims are true” and “I simply have no way of being able to swear affirmatively, under penalty of perjury, to a good faith belief that a financial hardship ‘does not exist’ as to my tenants….” DE 89 at 5-6. These contradictions foreshadowed more significant problems. Vekiarellis, Chrysafis’s cousin and property manager, had greater detail concerning the situation. Vekiarellis, a licensed realtor, attempted to sell the property for his cousin and, having been unsuccessful, agreed to take on the responsibility of leasing the property. Tr. 36. He found the tenants, a couple with adult children, and received tax returns, a credit report and bank statements in order to evaluate their financial suitability. Tr. 36. Vekiarellis, an experienced rental realtor, collected employment information about the couple, Jeffrey and Laura Coyne, and obtained references. Tr. 40. For reasons that remain unclear, he did not check the references. Tr. 40; Tr. 55. He learned that Jeffrey Coyne was a retired sheriff with a monthly pension of nearly $5,000 and $200,000 in other annual income. Tr. 41. The tenants stopped paying rent a full year before COVID because Vekiarellis advised them the house would be sold. Tr. 42. In late 2019, he brought an eviction proceeding, which was settled in October 2019 with a $25,000 payment from the tenants. Tr. 44. However, by December 2019, the tenants violated the agreement by paying late. Tr. 44. Because Jeffrey Coyne was disabled, Vekiarellis agreed to permit the family to remain until April 2020, so they could locate suitable housing. Tr. 45. The tenants did not move out. In July 2021, Vekiarellis returned to court, obtaining via stipulation a money judgment exceeding $93,000, and an agreement that the tenants would move out by September 2021. Tr. 46. At some point during this process, Vekiarellis learned that in 2020, Jeffrey Coyne passed away.4 Tr. 47. Notably, Vekiarellis admitted on cross-examination that he had submitted sworn statements indicating that he believed the tenants were not suffering a hardship due to COVID. Tr. 49. This testimony apparently refers to an affidavit submitted to this Court in May 2021 in which he stated under oath as follows: To my knowledge, the tenants are not suffering hardship due to COVID and one of them has continued to work throughout the pandemic. DE 13 18; Tr. 54. In fact, Vekiarellis filed a similar sworn statement before another judge of this Court in an earlier, related litigation. See Chrysafis v. James, 21-CV-0998(JS), DE 9 16. Tellingly, in both documents, he averred that “Pantelis and I are particularly frustrated that the tenants’ issues are clearly not related to COVID — they first stopped paying rent nearly two years ago….” Id. 17; DE 13 19. Nevertheless, even though he twice swore to a belief before this Court that the tenants were not suffering from a COVID-related hardship, he has not filed an affidavit challenging the hardship declaration in state court, and now claims he is unable to do so “[b]ecause I don’t have any direct knowledge of their financial status.” Tr. 38, 50. Plaintiff Shi While plaintiff Mudan Shi did not testify at the first preliminary injunction hearing in this matter, factual findings related to plaintiffs Shi and her husband, plaintiff Zhou, are incorporated herein by reference. Chrysafis I, 2021 WL 2405802, at *4. Shi and Zhou live in a rented home with her children and her in-laws in Staten Island. Tr. 60. The couple also owns a second home in Staten Island, which they rented out in 2018. Tr. 62-63. The tenants stopped paying rent in April 2019, leading to the entry of an uncollected $15,000 money judgment in October 2019. Tr. 63-64. An eviction warrant was entered in January 2020, but due to technical defects could not be served. Tr. 64. Mrs. Shi planned to evict the tenant and turn the property over to her in-laws so they could live there. Tr. 66. She claimed that she does “not know for sure” about her tenants’ financial circumstances. Tr. 69-71. However, it is clear that her tenants stopped paying rent well before the onset of the pandemic, and that their failure to pay rent was unrelated to the pandemic. Tr. 74-75. At one point, a neighbor advised Shi that her tenant engaged in narcotics dealing from the home; a second neighbor in an attached home complained of insects emanating from the rental property. Tr. 84-85. In September 2021, she learned that her tenant had been arrested for dealing drugs from the home. Tr. 88-89. Shi testified that she declined to apply for aid from the Landlord Rental Assistance Program (LRAP) because of her understanding that in accepting the aid, she would have to allow the tenant to “stay there for one year for free.” Tr. 87, 91. Bewilderingly, Shi testified that she only became aware of the filing of hardship declarations by her tenant one week before the hearing in October 2021. Tr. 74. This statement stands in stark contrast to her repeated sworn filings in this case, in which she complained of the effect of the hardship declarations. DE 11
8-10, 12; DE 90
