Lack of Holiday Evictions: Myth or Reality?
MONDAY, DECEMBER 22, 2008

Judith Goldiner, Supervising Attorney in the Civil Practice Law Reform Unit, is quoted in The New York Times article on the holiday moratorium on evictions. Judith tells the Times that evictions often occur right before and after Christmas.

 

December 22, 2008
Still Home for the Holidays, When Evictions Halt
By MANNY FERNANDEZ

It may be one of the longest-running, least-known and most mysterious acts of gift-giving in New York City. On Monday, adhering to a tradition they have honored for decades, the people who evict New Yorkers from their apartments begin a two-week holiday.

The marshals, as they are known, have been taking the year-end break for so long that no one knows precisely when, or why, the custom began. Sanctioned by neither the New York City Marshals Association, which represents the city’s 45 marshals, nor the city’s Department of Investigation, which regulates them, the practice is so informal that the exact dates shift every year and judges and lawyers often learn of them by word of mouth.

Yet every year around the holidays, a majority — though not always all — of the marshals stop executing evictions, providing at least temporary relief to thousands of tenants around the city.

“It’s one of those myths that take on the force of law,” said Jaya K. Madhavan, supervising judge of Bronx Housing Court.

Many tenants do not even know they are being granted a reprieve. At Bronx Housing Court last week, many tenants who had received legal notices of eviction for nonpayment of rent had not heard of the marshals’ holiday. When informed of it, some were skeptical. But others said the break would provide crucial time to reach out to relatives, charities and city agencies for financial aid.

“It is appreciated,” said Dalena Diaz, 25, who had gone to the courthouse with her 3-year-old daughter to try to stop an eviction that could have been carried out on Christmas Eve but, because of the holiday and a judge’s order, was ultimately postponed. “At least they have some type of sympathy for the holidays.”

Housing lawyers have taken to calling the break an “eviction moratorium,” and some said they thought it existed to provide holiday relief to the poor. Though there are no exact statistics, Housing Court judges and lawyers said that in late December, there are significantly fewer evictions than other times of the year. Over all, the marshals execute about 25,000 evictions a year.

Some tenant advocates said they thought the hiatus was created not to benefit tenants but to help marshals and landlords avoid the negative publicity of holiday-season evictions and becoming, as Louise Seeley, the executive director of the nonprofit City-Wide Task Force on Housing Court, put it, “the Grinch who evicted Christmas.”

The marshals themselves, a no-nonsense bunch who carry licensed handguns when they eject people and their possessions from apartments (they can also change the locks when no one is home), are more circumspect in discussing the hiatus.

They call it a “year-end break,” saying they use the time to complete annual financial statements required by the city or to take vacations. And most eschew sentimental talk about wanting to avoid putting families on the street around the holidays.

“It’s the end of the year and things are slow,” said Ken Kelly, a retired police detective who is executive director of the Marshals Association.

But at least one marshal expressed a bit of holiday spirit in acknowledging his plans to take a break: “Could you go into an apartment with a Christmas tree and evict everybody and be Scrooge?” said Danny Weinheim, 56, who is based in the Bronx and has 31 years on the job. “Do you do that on Dec. 23 or Dec. 24? I wouldn’t do that. It’s Christmas Eve. I’m Jewish, but it’s still Christmas Eve.”

Eviction holidays have been challenged in other cities. In Milwaukee, there was an informal eviction moratorium some years ago, but county judges abandoned it in 1991 after a local landlord and the American Civil Liberties Union complained that the practice promoted the religious celebration of Christmas. And in Detroit in the mid-1980s, a landlord sued state court judges over an 18-day holiday moratorium, alleging that it violated the separation of church and state and his constitutional rights.

In New York City, landlords have taken a different approach. Though some may privately grumble about the marshals’ extended break, landlords have not made an issue of it.

Mitchell Posilkin, general counsel for the Rent Stabilization Association, a trade group that represents thousands of city landlords, said the group’s broader concern was not with the marshals’ December hiatus, but with the rest of the year, when it can take weeks because of court delays for warrants of eviction to be issued.

Still, lawyers for landlords say the holiday takes a financial toll.

“Owners are basically absorbing what I would call a social cost,” said Eugene Reisman, a lawyer who represents property owners. “They’re paying the cost of keeping a tenant who’s not paying rent in possession of an apartment.”

No one — not even longtime lawyers and marshals — seems to know exactly when the tradition started. By most estimates, marshals have been taking their holiday break for at least 30 to 40 years. “My impression was it had been around long before I started practicing,” said Andrew Scherer, a housing lawyer for 30 years and the author of “Residential Landlord-Tenant Law in New York.”

Since the custom is an informal one, marshals can ignore the break and go right on working. The only days a marshal cannot officially perform an eviction around this time are the legal holidays of Dec. 25 and Jan. 1. The other weekdays are, technically, fair game if a marshal decides not to take part in the break.

Tenant lawyers say marshals have carried out evictions in the days right before and after Christmas. “I think there’s this sense out there that it doesn’t happen, but it does,” said Judith Goldiner, a supervising attorney at the Legal Aid Society, which represents low-income residents in Housing Court.

Mr. Kelly said he believed that all city marshals were taking part in the break this year, but there was talk in Housing Court of at least one marshal who apparently would be working this week.

Marshals are the bouncers of this city of renters, and theirs is a difficult and occasionally dangerous task. In 2001, a marshal, Erskine G. Bryce, was trying to evict a Brooklyn woman when he was beaten, set afire and killed, the police said, becoming the first city marshal killed on the job since 1984.

Marshals are not city employees, but are appointed by the mayor to five-year terms. They receive no city salary but they charge by the job and, in most eviction cases, they are paid by landlords. They are an eclectic bunch, far different from any bounty-hunter stereotype.

“I have two guys who have Ph.D.’s,” Mr. Kelly said. “I also have a guy who was an exterminator, and another guy who was a haberdasher.”

Ileana Rivera, 33, a marshal based in Brooklyn, fell into the job almost by accident, responding to an ad in the paper in 2006. She is planning to spend part of the break vacationing in Florida and said any benefits that tenants received because of her time off were unintentional.

“I’m the middleman here,” Ms. Rivera said. “I just do my job. I don’t favor the tenant. I don’t favor the landlord.”

Throughout much of the break, the legal machinery of Housing Court — the process of landlords seeking permission from judges to have tenants evicted — slows but does not stop. There is, however, a rush of business in the weeks before and after the break.

On Thursday evening, tenants who were threatened with eviction frantically headed to a courtroom in Bronx Housing Court, seeking a judge’s order to delay their evictions until court hearings could be scheduled.

Michelle Johnson, a 46-year-old mother of three, left the court in tears. Her request that a judge postpone the eviction was denied. The notice of eviction she carried stated she could be evicted as early as Monday. She owed her landlord about $3,500, and worried about how much time she had left, and where she could get the money, and what sort of Christmas she and her children would have.

“I don’t even have a tree,” said Ms. Johnson, a community organizer for a union. “I don’t know what to do. Should I start getting boxes?”

She was unaware of the eviction holiday, and her eviction notice mentioned nothing about it. She found it hard to believe that she really, truly, had two more weeks, as if she were being asked to believe in Santa Claus again.