A group of Westchester County landlords cannot sue in federalcourt to block Gov. Andrew Cuomo's temporary moratorium onevictions in response to the COVID-19 pandemic, a judge ruledMonday.

U.S. District Chief Judge Colleen McMahon of the SouthernDistrict of New York said in a 37-page opinion that federal courts do not havejurisdiction to determine whether Cuomo violated New York state lawby enacting his May 7 executive order pausing evictionsthrough Aug. 19.

In any event, she said, the order did not constitute a physicalor regulatory taking by the government that would give rise toclaims under the Fifth Amendment to the U.S. Constitution.

The lawsuit, filed in White Plains, sought to undotwo provisions of the order, which temporarily blocked landlordsfrom pursuing eviction proceedings and gave renters theoption to put their security deposit toward their rent payment.

"In doing so, the order has given carte blanche to tenants towithhold rent without  repercussion," attorney Mark A.Guterman of Lehrman, Lehrman & Guterman wrote inthe May 27 complaint.

"Plaintiffs and all similarly situated landlords are precludedfrom asserting their rights and obtaining relief to protect theirproperty, all the while remaining obligated to pay all of their owncarrying costs and other expenses, including taxes to the variousgovernmental divisions of New Yorkstate," Guterman argued.

In her ruling, McMahon noted that the U.S. death toll fromthe novel coronavirus had topped 120,000 as of Monday,making it the "deadliest pandemic in over a century." No country,she said, had suffered more than the U.S., and New York led all 50states with nearly 400,000 casesand 25,000 deaths.

Cuomo's order built on a similar measure inMarch that barred all commercial and residential evictionsthrough June but did not cancel rent payments altogether. Tenantsare still responsible for making up any missed payments to theirlandlord, and the legislature has not passed any form of rentforgiveness to allay the concerns of renters when the payments comedue.

The new order, however, did extend the original moratorium another twomonths for renters who qualified for unemployment benefits or wereunable to pay rent due to economic hardships resulting from thepandemic. Under the order, landlords are also required to applytenants' security deposits to unpaid rent at the request ofrenters, though the deposits must be repaid in increments starting90 days after they are used.

McMahon ruled on cross-motions for summaryjudgment that federal courts do not have the power toaddress claims that Cuomo's order improperly and "effectivelylegislated new laws," in violation of the state's Executive Law andthe New York Constitution.

"While it may be the case that governor has overstepped hisauthority under New York's Executive Law, curing those allegedharms would require this court to ignore the doctrine of statesovereign immunity and principles of federalism embodied in theEleventh Amendment," she wrote.

With regard to the plaintiffs' takings claims, McMahon said thatin times of emergency, state governments may reallocateeconomic hardships between private parties, like landlords andtheir tenants, without violating the Fifth Amendment.

The plaintiffs, she said, had failed to show that the stategovernment had seized control of their properties, and theexecutive order was limited in its scope. Landlords, McMahon wrote,still had the ability to sue their tenants for back rent, and theorder had neither reduced the amount owed nor had it forgiven anymissed rent payments or other obligations.

"As long as the order is in place, tenants will continue toaccrue arrearages, which the landlord will be able to collect withinterest once the order has expired," McMahon wrote. "Furthermore,landlords will regain their ability to evict tenants once the orderexpires."

Reached by phone Monday evening, Guterman said McMahon's rulingmissed the "practical realities" of the pandemic, where landlordswere likely to end up "eating the money" that was owed to them frommissed rent payments. He and his clients were still considering anappeal to the U.S. Court of Appeals for the Second Circuit orpotentially bringing a separate challenge in state court.

"We respect the judge, and we appreciate the opportunities shegave us in the case to get our arguments out there," Gutermansaid.

"The more time that goes by, and the more money that goes bythat's not paid, most tenants will probably want to walk away fromit," he said. "No person, be it a landlord or anyone else, wouldwant to be in a position of losing half of their income."

A representative from Cuomo's press shop did not respond Mondayto a request for comment.

The case was captioned Elmsford Apartment Associates v.Cuomo.

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