36 Apartment Assocs. v. Cuomo

20-2565-cv
36 Apartment Assocs. v. Cuomo

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 16th day of July, two thousand twenty-one.

PRESENT: DENNIS JACOBS,
DENNY CHIN,
WILLIAM J. NARDINI,
Circuit Judges.
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36 APARTMENT ASSOCIATES, LLC, ELMSFORD
APARTMENT ASSOCIATES, LLC, 66
APARTMENT ASSOCIATES, JV,
Plaintiffs-Appellants,

-v- 20-2565-cv

ANDREW CUOMO, AS GOVERNOR OF THE
STATE OF NEW YORK,
Defendant-Appellee.

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FOR PLAINTIFFS-APPELLANTS: MARK A. GUTERMAN, Lehrman, Lehrman &
Guterman, LLP, White Plains, New York.
FOR DEFENDANT-APPELLEE: LINDA FANG, Assistant Solicitor General
(Steven C. Wu, Deputy Solicitor General, and
Barbara D. Underwood, Solicitor General, on
the brief), for Letitia James, Attorney General of
the State of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (McMahon, J.).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the appeal is DISMISSED.

Plaintiffs-appellants -- three residential landlords ("plaintiffs") -- appeal

the district court's judgment, entered June 29, 2020, denying their motion for summary

judgment and granting defendant-appellee Governor Andrew Cuomo's motion for

summary judgment. Plaintiffs sought injunctive relief against Governor Cuomo's

Executive Order 202.28, N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.28 (2020) ("EO

202.28"), issued May 7, 2020, alleging that the order’s eviction moratorium and security

deposit provisions violated their constitutional rights. The district court granted

summary judgment in favor of Governor Cuomo, and this appeal followed. We assume

the parties' familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

In response to our order, entered May 7, 2021, the parties submitted letter

briefs on the issue of whether any part of this appeal had been rendered moot or

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otherwise non-justiciable because of subsequent legislative or executive action. The

Government submitted a post-argument letter brief on June 28, 2021, addressing further

developments bearing on mootness, to which the plaintiffs submitted a reply on June

29, 2021.

A. Eviction moratorium provision

EO 202.28 prohibited the commencement of eviction proceedings against

tenants for nonpayment of rent when those tenants faced financial hardship due to the

COVID-19 pandemic. N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.28 (2020). The

prohibition ran for 60 days, starting June 20, 2020, and expiring on August 19, 2020 --

after the district court's decision, but before this case was heard on appeal. The New

York legislature, meanwhile, enacted its own prohibitions on eviction proceedings,

including the COVID-19 Emergency Eviction and Foreclosure Prevention Act, 2020 N.Y.

Sess. Laws ch. 381 (S. 9114), and the subsequent extension of the Act by Senate Bill

S6362A, signed by the Governor on May 5, 2021.

Plaintiffs acknowledge in their letter brief that "[t]he specific effects of the

Executive Order have been superceded by subsequent legislation," but they nonetheless

argue that their challenges to the Executive Order should be heard on the merits. Dkt.

No. 66 at 1-2. We disagree.

"Article III's case-or-controversy requirement subsists through all stages of

federal judicial proceedings. It is not enough that a dispute was very much alive when
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suit was filed." Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 461 (2007)

(internal quotation marks, ellipsis, and brackets omitted). Here, the eviction

moratorium provision of EO 202.28 expired in August 2020 and it has not been

extended or reimposed. While the state legislature has enacted eviction moratorium

provisions, they are different in material respects from the provision in EO 202.28 that is

being challenged in this litigation. Moreover, at oral argument plaintiffs apparently

abandoned their claim for nominal damages, which might otherwise have prevented

their appeal from being mooted. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801-02

(2021) (holding that, even when a challenged policy has been discontinued, a plaintiff

who seeks nominal damages for a completed violation of a legal right can satisfy the

redressability element of standing); N.Y. State Rifle & Pistol Assoc., Inc. v. City of New

York, 140 S. Ct. 1525, 1526-27 (2020) (declining to allow plaintiffs to avoid mootness by

adding a damages claim). Hence, this challenge is moot.

Plaintiffs contend that their eviction moratorium claims are not moot

because the Governor may engage in "improper acts" again in the future. Dkt. No. 66 at

1. When a challenged regulation expires during litigation, "that does not necessarily

moot the case" when the plaintiffs can show that they "remain under a constant threat

that government officials will use their power to reinstate the challenged restrictions."

Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (internal quotation marks omitted). But

this is not a case where the challenged restrictions were voluntarily withdrawn or
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altered during litigation. See, e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63,

68-69 (2020) (holding that challenge to executive order restricting attendance at religious

services in "red" and "orange" zones was not moot simply because subsequent executive

order reclassified the areas as "yellow"). They expired by their own terms, and in the

circumstances presented, including the intervening passage of legislation, we are not

persuaded that there is "a reasonable expectation of recurrence." Russman v. Bd. of Educ.

of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 (2d Cir. 2001).

B. Security deposit provision

As the Governor notes, EO 202.28 expired on June 25, 2021, and has not

been renewed. See Exec. Order No. 202.109, 9 N.Y.C.R.R. § 8.202.109 (2021) (extending

disaster emergency through June 24, 2021); see also Exec. Order No. 210, 9 N.Y.C.R.R. §

8.210 (2021) (rescinding Executive Orders 202 through 202.111). Because plaintiffs seek

only an injunction against enforcement of that provision, its rescission provided

plaintiffs with their requested relief. See N.Y. State Rifle & Pistol Assoc., 140 S. Ct. at

1526. The claims relating to the security deposit provision of EO 202.28 are therefore

also moot, unless plaintiffs can demonstrate that they "remain under a constant threat

that government officials will use their power to reinstate the challenged restrictions."

Tandon, 141 S. Ct. at 1297 (internal quotation marks omitted).

EO 202.28 was enacted as part of a statewide response to the COVID-19

crisis. We are not persuaded that the circumstances under which the security deposit
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provision might be reinstated are sufficiently likely to reoccur such that plaintiffs

"remain under a constant threat," id., of reinstatement. Accordingly, plaintiffs' challenge

to the security deposit provision is also moot.

* * *

We have considered plaintiffs' remaining arguments and conclude they

are without merit. Accordingly, we DISMISS the appeal.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk

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