20-4238
`Melendez v. City of New York
`
`
`
`
`
`In the
`United States Court of Appeals
`for the Second Circuit
`
`
`
`
`AUGUST TERM 2020
`No. 20-4238-cv
`MARCIA MELENDEZ, JARICAN REALTY INC., 1025 PACIFIC LLC,
`LING YANG, TOP EAST REALTY LLC, HAIGHT TRADE LLC,
`ELIAS BOCHNER, 287 7TH AVENUE REALTY LLC,
`Plaintiffs-Appellants,
`v.
`CITY OF NEW YORK, a municipal entity, MAYOR BILL DE BLASIO, as
`Mayor of the City of New York, COMMISSIONER LOUISE CARROLL,
`Commissioner of New York City Department of Housing
`Preservation & Development, COMMISSIONER JONNEL DORIS,
`Commissioner of New York City Department of Small Business
`Services,
`Defendants-Appellees.
`__________
`
`On Appeal from the United States District Court
`for the Southern District of New York
`__________
`ARGUED: MAY 3, 2021
`DECIDED: OCTOBER 28, 2021
`__________
`Before: CABRANES, RAGGI, and CARNEY, Circuit Judges.
`
`

`

`________________
`Plaintiffs, New York City landlords, appeal from a November
`
`30, 2020 judgment of the United States District Court for the Southern
`District of New York (Abrams, J.), dismissing their constitutional
`challenges, brought pursuant to 42 U.S.C. § 1983, to certain New York
`City laws enacted in response to the COVID-19 pandemic. See Fed. R.
`Civ. P. 12(b)(6). Plaintiffs allege that amendments to the City’s
`Residential and Commercial Harassment Laws, see N.Y.C. Admin.
`Code §§ 22-901 et seq., 27-2004 et seq., which prohibit “threatening”
`tenants based on their COVID-19 status, violate the Free Speech and
`Due Process Clauses of the First and Fourteenth Amendments by
`restricting commercial speech in the ordinary collection of rents and
`failing to provide fair notice of what constitutes proscribed
`threatening conduct. See U.S. Const. amends. I & XIV. They further
`allege that N.Y.C. Admin. Code § 22-1005 (“Guaranty Law”) violates
`the Contracts Clause by rendering unenforceable certain personal
`guaranties of commercial lease obligations. See U.S. Const. art. I, § 10
`cl. 1. While we agree that plaintiffs fail to allege plausible First and
`Fourteenth Amendment claims as to the amendments to the
`Harassment Laws, we conclude that they do allege a plausible
`Contracts Clause challenge to the Guaranty Law. We, therefore,
`further conclude that plaintiffs’ Contracts Clause claim should not
`have been dismissed nor should their motion for preliminary
`injunctive and declaratory relief have been denied without review.
`
`AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND
`REMANDED.
`
`Judge Carney concurs in the result in part and dissents in part in a
`separate opinion.
`
`2
`
`
`
`

`

`
`
`
`
`
`
`CLAUDE G. SZYFER, Stroock & Stroock &
`Lavan LLP, New York, New York, for
`Plaintiffs-Appellants.
`
`JAMISON DAVIES, Assistant Corporation
`Counsel (Richard Dearing, Devin Slack, on
`the brief), for James E. Johnson, Corporation
`Counsel of the City of New York, New York,
`New York, for Defendants-Appellees.
`
`Deborah E. Riegel, Rosenberg & Estis, P.C.,
`New York, New York, for amici curiae Rent
`Stabilization Association of N.Y.C., Inc. and
`Community Housing Improvement Program.
`
`Michael J. Harris, Jonathan A. Herstoff,
`Haug Partners LLP, New York, New York;
`Arthur Kats, Volunteers of Legal Service,
`New York, New York, for amicus curiae
`Volunteers of Legal Service.
`
`LiJia Gong, Public Rights Project, Brooklyn,
`New York, for amici curiae the Cities of
`Chicago, Santa Monica, and 17 Additional Local
`Governments.
`
`Joshua A. Matz, Raymond P. Tolentino,
`Molly Webster, Kaplan Hecker & Fink LLP,
`New York, New York, for amici curiae
`Constitutional Law Scholars.
`
`
`
`
`3
`
`
`
`

`

`REENA RAGGI, Circuit Judge:
`
`In response to the COVID-19 pandemic, governments at all
`levels—federal, state, and local—enacted laws to address health,
`safety, and economic concerns. Some of these laws have operated
`affirmatively, with
`the
`federal government
`in particular
`appropriating trillions of dollars to fund vaccine development and
`distribution, to enhance unemployment benefits, to stimulate the
`economy, etc. Other laws have operated negatively to proscribe
`communal conduct, to limit or excuse financial obligations, to
`preclude or limit certain legal remedies, etc. At issue in this appeal
`are certain laws falling into the second category and enacted by New
`York City (“City”) in May 2020, at the height of the pandemic,
`specifically, (1) amendments to the City’s existing Residential and
`Non-Residential (i.e., “Commercial”) Harassment Laws, see N.Y.C.
`Admin. Code §§ 22-901 et seq., 27-2004 et seq. (together the
`“Harassment Amendments”), which prohibit
`“threatening”
`residential or commercial tenants based on their COVID-19 status;
`and (2) N.Y.C. Admin. Code § 22-1005 (the “Guaranty Law”), which
`renders permanently unenforceable personal liability guaranties of
`commercial lease obligations arising between March 7, 2020, and June
`30, 2021.
`
`In this action, filed in the United States District Court for the
`Southern District of New York (Ronnie Abrams, J.), plaintiffs, Marcia
`Melendez, Ling Yang, Elias Bochner, and the corporate landlords in
`which they own interests, sue the City and various named City
`officials under 42 U.S.C. § 1983 for a judgment declaring the
`challenged laws unconstitutional and for an injunction permanently
`
`4
`
`
`
`

`

`enjoining their enforcement. They allege that the Harassment
`Amendments violate the Free Speech and Due Process Clauses of the
`United States and New York State Constitutions by impermissibly
`restricting commercial speech in the ordinary collection of rents and
`by failing to provide fair notice of what constitutes threatening
`conduct. See U.S. Const. amends. I & XIV; N.Y. Const., art. I § 8.
`Plaintiffs further allege that the Guaranty Law violates the United
`States Constitution’s Contracts Clause, which prohibits “State . . .
`Law[s] impairing the Obligation of Contracts,” U.S. Const. art. I, § 10,
`cl. 1.1 Plaintiffs now appeal from a judgment of the district court
`entered on November 30, 2020, (1) granting defendants’ motion to
`dismiss plaintiffs’ amended complaint in its entirety for failure to
`state a claim, see Fed. R. Civ. P. 12(b)(6); and (2) denying plaintiffs’
`motion for preliminary injunctive and declaratory relief without
`review. See Melendez v. City of New York, 503 F. Supp. 3d 13 (S.D.N.Y.
`2020).
`
`Upon de novo review of the challenged judgment, we conclude,
`as the district court did, that plaintiffs fail to allege plausible free
`speech and due process claims. As to their Contracts Clause challenge
`to the Guaranty Law, however, we conclude that the amended
`complaint, viewed most favorably to plaintiffs, does not permit a
`court to dismiss this claim pursuant to Rule 12(b)(6). Accordingly, we
`affirm the dismissal of plaintiffs’ challenges to the Harassment
`Amendments, but we reverse the dismissal of their Contracts Clause
`
`1 The Supreme Court has variously referred to this constitutional proscription as
`the “Contract Clause,” see, e.g., United States Tr. Co. v. New Jersey, 431 U.S. 1, 14
`(1977), and the “Contracts Clause,” see, e.g., Sveen v. Melin, 138 S. Ct. 1815, 1821
`(2018). In this opinion, we employ the latter, most recent appellation, except when
`quoted text does otherwise.
`
`5
`
`
`
`

`

`challenge to the Guaranty Law, vacate the denial of preliminary
`injunctive and declaratory relief, and remand the case to the district
`court for further proceedings consistent with this opinion.
`
`BACKGROUND
`
`In recounting the background to this case, we follow the
`standard applicable to judicial review of motions to dismiss, i.e., we
`accept all factual allegations in the plaintiffs’ amended complaint as
`true, and we consider that pleading, together with all documents
`appended thereto or incorporated by reference, as well as all matters
`of proper judicial notice and public record, in the light most favorable
`to plaintiffs. See Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels
`Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004); Automated
`Salvage Transp., Inc. v. Wheelabrator Env’t Sys., Inc., 155 F.3d 59, 67 (2d
`Cir. 1998).2
`
`I.
`
`COVID-19 Pandemic
`
`The challenged Harassment Amendments and Guaranty Law
`
`were enacted in response to the COVID-19 pandemic. The severity of
`that pandemic is not disputed by the parties and, thus, requires little
`elaboration here. It suffices to note that to date the United States has
`
`
`2 To the extent that facts of which we might otherwise take judicial notice are
`disputed, we decline to consider them. See Fed. R. Evid. 201(b) (providing for
`judicial notice of facts outside record that are “not subject to reasonable dispute”);
`United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (cautioning that, on Rule
`12(b)(6) motion, district should have taken judicial notice of report only to
`determine what statements it contained, not for truth of matters asserted therein);
`Oneida Indian Nation v. New York, 691 F.2d 1070, 1086 (2d Cir. 1982) (observing that
`judicial notice of disputed fact should not ordinarily be taken as basis for dismissal
`of complaint on its face).
`
`6
`
`
`
`

`

`identified 45,468,434 cases of coronavirus infection, resulting in
`736,048 deaths.3
`
`It is also undisputed that New York State was hit early and hard
`by the pandemic. By the end of March 2020, the state had become the
`nation’s pandemic epicenter, reporting approximately one third of
`infection cases nationwide, with New York City alone then
`accounting for one quarter of the country’s virus-related deaths.4
`
` In addition to causing a nationwide public health emergency,
`the pandemic fomented an economic crisis as government-mandated
`mitigation measures
`limited personal
`interactions and forced
`businesses to suspend or reduce operations. A few statistics make the
`point. In the spring of 2020, the United States experienced its sharpest
`economic contraction since World War II, with April 2020
`unemployment numbers climbing to a record 14.4%.5 In New York,
`between February and June 2020, the unemployment rate climbed
`
`
`3 See Covid Data Tracker, C.D.C.
`https://covid.cdc.gov/covid-data-
`tracker/?cdc_aa_refval=https%3a%2f%2fwww.cdc.gov%2fcoronavirus%2f2019-
`ncov%2fcases-updates%2fcases-in-us.html#global-counts-rates.
`
`(last accessed Oct. 27, 2021),
`
`4 See Aylin Woodward, One chart shows how quickly New York City became the
`epicenter of the US's coronavirus outbreak, Bus. Insider (Mar. 30, 2020, 3:59 PM),
`https://www.businessinsider.com/new-york-city-coronavirus-cases-over-time-
`chart-2020-3.
`
`5 See Rakesh Kochhar, Unemployment rose higher in three months of COVID-19 than it
`did in two years of the Great Recession, Pew Rsch. Ctr. (June 11, 2020),
`https://www.pewresearch.org/fact-tank/2020/06/11/unemployment-rose-higher-
`in-three-months-of-covid-19-than-it-did-in-two-years-of-the-great-recession/.
`
`7
`
`
`
`

`

`higher still, to 20.3%, with over 1.4 million people filing for benefits.6
`To address the issues on this appeal, it is useful to summarize at the
`outset how government, at various levels, responded and/or
`contributed to the economic challenges of the COVID-19 pandemic.7
`
` The Federal Response
`Between March 2020 and March 2021, Congress appropriated
`an unprecedented five trillion dollars to address various aspects of the
`pandemic emergency. On March 25, 2020, Congress enacted the
`Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”),
`a $2.2 trillion stimulus package—the largest in American history—
`which, among other things, appropriated $293.5 billion for one-time
`cash payments (usually $1,200/person) to qualifying individuals; $268
`billion to increase unemployment benefits; $150 billion to aid state
`and local governments; and $349 billion to fund the new Paycheck
`Protection Program (“PPP”), which provided potentially forgivable
`loans to small businesses for use meeting payroll and, to a lesser
`extent, rent and other operating costs. See Pub. L. No. 116-136,
`
`
`6 Popular Annual Financial Report (PAFR), N.Y.C. Comptroller (Nov. 30, 2020),
`https://comptroller.nyc.gov/reports/popular-annual-financial-reports/. Plaintiffs
`report that, as of the date of their amended complaint, New York State had “paid
`over $10 billion in unemployment benefits, approximately 400% more than the
`State paid” the prior year. App’x at 4296.
`
`7 While plaintiffs have, correctly, urged the court to consider their constitutional
`challenges in the context of the broader relief accorded by various actors during
`the pandemic, they have not provided this court with a comprehensive account of
`the COVID-19 relief available to New Yorkers during the pandemic. We endeavor
`ourselves to summarize key government action in this area.
`
`8
`
`
`
`

`

`§§ 601(a), 1102(a), 1107(a)(1), 2102(d), 2201(a), (f).8 The CARES Act
`also increased funding for existing Small Business Administration
`(“SBA”) loan programs, including for Economic Injury Disaster Loan
`grants, and imposed a 120-day eviction moratorium for certain
`residential properties. See id. §§ 1107(a)(6), 1110, 4024(a), (b).
`
`At the end of 2020, Congress made another $900 billion in
`pandemic relief available through the Consolidated Appropriations
`Act, see generally Pub. L. No. 116-260, with $25 billion directed to an
`Emergency Rental Assistance Program (“ERA”) for residential
`tenants, see id. § 501. In doing so, Congress also extended by one
`month a residential eviction moratorium previously imposed by the
`Centers for Disease Control and Prevention (“CDC”) and discussed
`in the next paragraph. See id. § 502. Three months later, on March 11,
`2021, Congress appropriated another $1.9 trillion in relief through the
`American Rescue Plan. See Pub. L. No. 117-2. Of this amount, $21.55
`billion was earmarked as additional ERA funding, see id. § 3201,9 and
`$28.6 billion was directed to the new Restaurant Revitalization Fund
`to help small restaurant businesses meet payroll, mortgage, rent, and
`other operating expenses, see id. § 5003(b)(2)(A), (c)(5).
`
`Meanwhile, federal agencies also pronounced economic
`policies in response to the pandemic. Notably, in September 2020,
`
`8 See also What’s in the $2 Trillion Coronavirus Relief Package?, Comm. for a Resp. Fed.
`Budget (Mar. 25, 2020), https://www.crfb.org/blogs/whats-2-trillion-coronavirus-
`relief-package.
`
`9 Delays in state distribution of ERA funds have been reported. See, e.g., Glenn
`Thrush & Alan Rappeport, About 89% of Rental Assistance Funds Have Not Been
`Distributed, Figures Show, N.Y. Times
`(Aug. 25, 2021, 10:38 AM),
`https://www.nytimes.com/2021/08/25/us/politics/eviction-rental-assistance.html.
`
`9
`
`
`
`

`

`after the first congressional residential eviction moratorium expired,
`the CDC declared a temporary nationwide halt in residential
`evictions for persons submitting sworn declarations that they had
`been adversely affected by the pandemic. See 85 Fed. Reg. 55,292
`(Sept. 1, 2020). The CDC extended this moratorium in various forms,
`most recently through October 3, 2021. See 86 Fed. Reg. 43,244 (Aug.
`4, 2021).10
`
` New York State’s Response
`1. Gubernatorial Orders
`
`In an effort to control the pandemic within New York, the state
`legislature, on March 3, 2020, granted then-Governor Andrew M.
`Cuomo broad authority to “issue any directive during a state disaster
`emergency” that he deemed “necessary to cope with the disaster,”
`and expanded his existing authority temporarily to suspend “any
`statute, local law, ordinance, or orders, rules or regulations.” N.Y.
`Exec. Law art. 2-B, § 29-a (2020); 2020 N.Y. Sess. Law Ch. 23
`(McKinney).11 Four days later, the Governor declared the COVID-19
`pandemic a state disaster emergency, see Exec. Ord. 202, and
`proceeded, over the next weeks and months, to issue more than
`seventy executive orders to address the crisis.
`
`
`10 The CDC’s eviction moratorium was enjoined after the Supreme Court deemed
`plaintiffs “virtually certain to succeed on the merits of their argument that the
`CDC has exceeded its authority.” Alabama Ass'n of Realtors v. Dep't of Health &
`Hum. Servs., 141 S. Ct. 2485, 2486 (2021).
`
`11 The former authority was revoked in March 2021. See 2021 N.Y. Sess. Law Ch.
`71 (McKinney).
`
`10
`
`
`
`

`

`Certain orders issued between March 16 and 19, 2020, closed or
`severely limited the in-person operation of large numbers of New
` These shut-down orders were repeatedly
`York businesses.12
`extended and modified over the following months.13
`
`Starting in the late spring of 2020, the Governor allowed some
`New York businesses slowly to reopen, varying operating restrictions
`based on industry and regional COVID-19 case counts.14 Not until
`the following summer, however, did the Governor lift most
`pandemic-related restrictions, making state capacity limits and social
`
`
`12 See Exec. Ords. 202.3 (mandating closure of all “gym[s], fitness centers or classes,
`and movie theaters,” and permitting restaurants and bars “only [to] serve food or
`beverage for off-premises consumption”), 202.7 (closing all “barbershops, hair
`salons, tattoo or piercing parlors and related personal care services . . . includ[ing]
`nail technicians, cosmetologists and estheticians” and businesses providing
`“electrolysis, [and] laser hair removal services”); see also Exec. Ords. 202.6
`(requiring all non-essential businesses to reduce in-person workforces by 50%),
`202.7 (raising in-person workforce reduction to 75%), 202.8 (mandating 100% in-
`person workforce reduction).
`
`13 See, e.g., Exec. Ords. 202.13, 202.14, 202.18, 202.38, 202.48, 202.55.
`
`14 See Amid Ongoing COVID-19 Pandemic, Governor Cuomo Outlines Phased Plan to
`Re-open New York Starting with Construction and Manufacturing, N.Y. State (Apr. 26,
`https://www.governor.ny.gov/news/amid-ongoing-covid-19-pandemic-
`2020),
`Governor
`governor-cuomo-outlines-phased-plan-re-open-new-york-starting;
`Cuomo Announces Gyms and Fitness Centers Can Reopen Starting August 24, N.Y.
`State (Aug. 17, 2020), https://www.governor.ny.gov/news/governor-cuomo-
`Governor
`announces-gyms-and-fitness-centers-can-reopen-starting-august-24;
`Cuomo Announces Indoor Dining in New York City Allowed to Resume Beginning
`September 30 with 25 Percent Occupancy Limit, N.Y. State (Sept. 9, 2020),
`https://www.governor.ny.gov/news/governor-cuomo-announces-indoor-dining-
`new-york-city-allowed-resume-beginning-september-30-25; Governor Cuomo
`Announces New Cluster Action
`Initiative, N.Y. State
`(Oct. 6, 2020),
`https://www.governor.ny.gov/news/governor-cuomo-announces-new-cluster-
`action-initiative.
`
`11
`
`
`
`

`

`distancing guidelines optional for offices, retail establishments, and
`nearly all businesses.15
`
`A number of other executive orders pertained to commercial
`and residential real estate. Notably, Executive Order 202.8, effective
`March 20, 2020, imposed a ninety-day moratorium on residential and
`commercial evictions and foreclosures.16 Executive Order 202.9,
`effective March 21, 2020, provided for the forbearance of mortgage
`payments by “any person or entity facing a financial hardship due to
`the COVID-19 pandemic.” Subsequent executive orders extended
`and expanded these protections until they were superseded by
`statute. Meanwhile, Executive Order 202.28, issued on May 7, 2020,
`required landlords to allow residential tenants affected by the
`pandemic to use security deposits to pay rent, and prohibited late-fee
`demands for rent arrears.17 Executive Order 202.32, issued on May 1,
`
`
`15 See Governor Cuomo Announces COVID-19 Restrictions Lifted as 70% of Adult New
`Yorkers Have Received First Dose of COVID-19 Vaccine, N.Y. State (June 15, 2021),
`https://www.governor.ny.gov/news/governor-cuomo-announces-covid-19-
`restrictions-lifted-70-adult-new-yorkers-have-received-first; Governor Cuomo
`Announces New York Ending COVID-19 State Disaster Emergency on June 24, N.Y.
`(June 23, 2021), https://www.governor.ny.gov/news/governor-cuomo-
`State
`announces-new-york-ending-covid-19-state-disaster-emergency-june-24.
`
`16 Starting that same month, the State’s Chief Administrative Judge issued a series
`of orders suspending commercial and residential evictions, see, e.g., N.Y. Admin.
`Ords. Nos. 68/20 (Mar. 16, 2020), 160A/20 (Aug. 13, 2020), and limiting foreclosure
`proceedings on commercial properties, see, e.g., N.Y. Admin. Ord. No. 157/20 (July
`23, 2020).
`
`17 This court recently dismissed as moot a constitutionality challenge to now-
`expired Executive Order 202.28. See 36 Apartment Assocs., LLC v. Cuomo, No. 20-
`2565-CV, 2021 WL 3009153, at *2 (2d Cir. July 16, 2021).
`
`12
`
`
`
`

`

`2020, permitted localities temporarily to extend deadlines for paying
`property taxes.
`
`2. Legislative Enactments
`
`laws
`legislature enacted various
`The New York State
`addressing pandemic-related real estate concerns. On June 17, 2020,
`it passed the Emergency Rent Relief Act of 2020, see 2020 N.Y. Sess.
`Laws Ch. 125 (McKinney), which provided for residential rent
`subsidies (in the form of vouchers) to be paid directly to landlords on
`behalf of tenants with the greatest need. Id. §§ 2.4, 2.7. That same day,
`the legislature amended the State Banking Law to require regulated
`entities to grant up to 180 days’ forbearance of mortgage payments.
`See N.Y. Banking L. § 9-x (2020).
`
`On June 30, 2020, the legislature passed the Tenant Safe Harbor
`Act (“TSHA”), 2020 N.Y. Sess. Laws Ch. 127 (McKinney), prohibiting
`eviction warrants and possession judgments against residential
`tenants suffering financial hardship for debts accrued from “March 7,
`2020 until the date on which none of the . . . Executive Order[s] issued
`in response to the COVID-19 pandemic continue to apply in the
`county of the tenant’s or lawful occupant’s residence.” Id. §§ 1, 2.1.18
`Thereafter, the COVID-19 Emergency Eviction and Foreclosure
`Prevention Act of 2020 (“CEEFPA”), enacted in December 2020, see
`2020 N.Y. Sess. Laws Ch. 381 (McKinney), and the COVID-19
`Emergency Protect Our Small Businesses Act of 2021 (“CEPOSBA”),
`enacted in March 2021, see 2021 N.Y. Sess. Laws Ch. 73 (McKinney),
`
`
`18 In September 2021, the legislature extended the TSHA’s coverage period through
`January 15, 2022. See 2021 N.Y. Sess. Law Ch. 417 (McKinney), pt. D, § 1.
`
`13
`
`
`
`

`

`provided relief from eviction for delinquent residential and
`commercial (specifically, small-business) tenants who submitted
`financial hardship declarations. See CEEFPA pt. A §§ 4, 6; CEPOSBA
`pt. A §§ 5, 7. The statutes also provided temporary protections from
`mortgage and tax foreclosures where certain hardship criteria are
`met. See CEEFPA pt. B, subpart A, §§ 5, 7, subpart B, § 3; CEPOSBA
`pt. B, subpart A, §§ 5, 7, subpart B, § 3.19 More recently, the legislature
`appropriated $800 million to fund COVID-19 relief grants of $5,000 to
`$50,000 for “socially and economically disadvantaged” small
`businesses to meet payroll, rent, mortgage, and other operating
`costs.20 Businesses receiving federal Restaurant Revitalization Fund
`grants are not eligible, nor are landlords.21
`
`
`19 Although CEEFPA and CEPOSBA were extended through August 31, 2021, see
`Act of May 4, 2021, 2021 N.Y. Sess. Laws Ch. 104 (McKinney), the Supreme Court
`preliminarily enjoined CEEFPA’s residential eviction moratorium on due process
`grounds, see Chrysafis v. Marks, 141 S. Ct. 2482 (2021) (discussed infra at 101 n.76).
`On September 2, 2021, the New York State legislature extended foreclosure and
`eviction protections through January 15, 2022, and, in an apparent attempt to
`address the due process concerns identified in Chrysafis, created a mechanism for
`landlords to contest tenants’ declarations of financial hardship. See 2021 N.Y. Sess.
`Law Ch. 417 (McKinney), § 2; pt. B, subparts A–C; pt. C, subparts A–C. This court
`has since dismissed the due process challenge to CEEFPA’s residential eviction
`moratorium as moot and remanded the 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. See Chrysafis v. Marks, 15 F.4th 208 (2d Cir. 2021).
`
`20 Governor Cuomo Announces Applications Now Open for $800 Million COVID-19
`Pandemic Small Business Recovery Grant Program, N.Y. State (June 10, 2021),
`https://www.governor.ny.gov/news/governor-cuomo-announces-applications-
`now-open-800-million-covid-19-pandemic-small-business.
`
`21 See New York State COVID-19 Pandemic Small Business Recovery Grant Program,
`N.Y. State (last accessed Aug. 19, 2021), https://nysmallbusinessrecovery.com/.
`
`14
`
`
`
`

`

`II.
`
`The Challenged New York City Actions
`
`It is against this backdrop of extensive federal and state action
`in response to the pandemic that we consider the challenged New
`York City laws. On April 21, 2020, the New York City Council
`(“Council”) announced its intent to consider a COVID-19 relief
`package “to protect tenants, help small businesses survive, and find
`creative ways to address the public health crisis brought on by the
`virus.” App’x at 517. None of the proposed laws appropriated funds
`for financial relief. Rather, of thirteen acts considered, most regulated
`the food service industry’s use of outdoor dining and food delivery
`as means to continue operating despite indoor shutdown orders.22
`The focus of this case, however, is on a trio of laws prohibiting the
`harassment of residential and commercial tenants based on their
`“status as a Covid-19 impacted business or person,” id. at 521; see also
`N.Y.C. Admin. Code §§ 27-2004 et seq., 22-901 et seq., and making
`commercial lease guaranties permanently unenforceable for rent
`arrears arising between March 7, 2020, and June 30, 2021, see N.Y.C.
`Admin. Code § 22-1005.
`
`
`22 See App’x at 974–77; Int. No. 1846-2020 (requiring accurate disclosure of delivery
`services’ gratuity policies); Int. No. 1895-2020 (requiring food to be delivered in
`tamper-evident packaging); Int. No. 1896-2020 (regulating disclosure of third-
`party delivery service fees); Int. No. 1897-2020 (requiring third-party delivery
`services to be licensed); Int. No. 1898-2020 (prohibiting third-party delivery
`services from charging for telephone orders not resulting in actual transaction);
`Int. No. 1907-2020 (prohibiting third-party delivery services from imposing limits
`on restaurant prices); Int. No. 1908-2020 (limiting third-party food delivery
`charges); Int. No. 1916-2020 (waiving sidewalk café fees); Int. No. 1921-2020
`(requiring food delivery services to display sanitation inspection letter grades
`online); Int. No. 1940-2020 (requiring city agencies to publish information about
`license and permit renewal extensions).
`
`15
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`
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`

`

` The Harassment Amendments
`The proposed harassment laws were actually amendments to
`the City’s existing Residential and Commercial Harassment Laws. To
`discuss plaintiffs’ First and Fourteenth Amendment challenges to
`these Harassment Amendments, it is useful to place them in their
`larger textual contexts.
`
`1. Pre-Pandemic Harassment Laws
`
`Enacted in 2008, the Residential Harassment Law states, as
`pertinent here, that “[t]he owner of a dwelling shall not harass any
`tenants or persons lawfully entitled to occupancy of such dwelling as
`set forth in [section 27-2004(a)(48)] of this chapter.” N.Y.C. Admin.
`Code § 27-2005(d). Subject to exceptions not here relevant, the
`referenced section defines “harassment” to mean
`
`any act or omission by or on behalf of an owner that
`(i) causes or is intended to cause any person lawfully
`entitled to occupancy of a dwelling unit to vacate such
`dwelling unit or to surrender or waive any rights in
`relation to such occupancy, and (ii) includes one or more
`of the following acts or omissions, provided that there
`shall be a rebuttable presumption that such acts or
`omissions were intended to cause such person to vacate
`such dwelling unit or to surrender or waive any rights in
`relation to such occupancy.
`
`N.Y.C. Admin. Code § 27-2004(a)(48). Among the many enumerated
`“acts or omissions” that can support a claim of harassment are certain
`proscribed “threats.” See, e.g., id. § 27-2004(a)(48)(a) (identifying
`“implied threats that force will be used against” any lawful tenant as
`act of harassment); § 27-2004(f-3)(1) (identifying use of “threatening”
`
`16
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`

`language in “offering money or other valuable consideration” to
`induce lawful tenant “to vacate” premises “or to surrender or waive
`any rights” of occupancy as harassment).23
`
`The Commercial Harassment Law, which took effect in 2016,
`
`affords commercial tenants similar, if not quite identical, protection
`from landlord harassment. See One Wythe LLC v. Elevations Urb.
`Landscape Design Inc., 67 Misc. 3d 1207(A), at *8 n.18, 126 N.Y.S. 3d 622
`(N.Y. Civ. Ct. 2020). In pertinent part, that law states that “[a]
`landlord shall not engage in commercial tenant harassment,” which
`it defines as
`
`[a]ny act or omission by or on behalf of a landlord that
`(i) would reasonably cause a commercial tenant to vacate
`covered property, or to surrender or waive any rights
`under a lease or other rental agreement or under
`applicable law in relation to such covered property, and
`(ii) includes one or more of the following [enumerated
`acts or omissions].
`
`N.Y.C. Admin. Code § 22-902(a). Like its residential counterpart, the
`Commercial Harassment Law identifies the implied threat of force
`among its list of harassing acts. See id. § 22-902(a)(1). At the same
`time, in a so-called “savings clause,” the law states that “[a] landlord’s
`lawful termination of a tenancy, lawful refusal to renew or extend a
`
`
`23 A residential tenant who proves landlord harassment can obtain a court order
`restraining the offending conduct, requiring the posting of a violation notice on
`the subject premises, and/or imposing civil penalties payable to the City. See
`N.Y.C. Admin. Code §§ 27-2110(b), 27-2115(m)(2). Willful or reckless violations
`can result in criminal penalties. See id. § 27-2118(a). At the same time, a tenant
`who files a frivolous harassment action can be sanctioned and/or ordered to pay
`the landlord’s attorney’s fees. See id. § 27-2115(m)(3)–(4).
`
`17
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`

`

`lease or other rental agreement, or lawful reentry and repossession of
`the covered property shall not constitute commercial tenant
`harassment for purposes of this chapter.” Id. § 22-902(b) (emphasis
`added).24
`
`In 2018, the Council amended the Residential Harassment Law
`to add to its enumerated acts of harassment “threatening” a lawful
`occupant of a residential premises based on certain protected
`grounds, specifically, the occupant’s
`
`actual or perceived age, race, creed, color, national
`origin, gender, disability, marital status, partnership
`status, caregiver status, uniformed service, sexual
`orientation, alienage or citizenship status, status as a
`victim of domestic violence, . . . sex offenses or stalking,
`lawful source of income, or because children are, may be
`or would be residing in such dwelling unit.
`
`Id. § 27-2004(a)(48)(f-5).
`
`In 2019, the Council similarly amended the Commercial
`Harassment Law to add as an enumerated act of harassment
`“threatening” a lawful commercial tenant
`
`based on . . . such person’s actual or perceived age, race,
`creed, color, national origin, gender, disability, marital
`status, partnership status, caregiver status, uniformed
`service, sexual orientation, alienage or citizenship status,
`
`24 A tenant who proves a violation of the Commercial Harassment Law may obtain
`a court order restraining further harassment, limiting the landlord’s ability to
`secure City construction approval and permits, and/or imposing a civil penalty of
`$10,000 to $50,000. See id. § 22-903(a).
`
`
`
`
`
`18
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`

`status as a victim of domestic violence, . . . sex offenses
`or stalking.
`
`Id. at § 22-902(a)(11)(i).
`
`2. The
`Pandemic Amendments
`Harassment Laws
`
`to
`
`the
`
`challenged Harassment
`the
`Effective May 26, 2020,
`Amendments added threatening a lawful tenant based on COVID-19
`status to both laws’ lists of protected classes. Thus, the Residential
`Harassment Law now prohibits “threatening” any lawful residential
`occupant “based on such person’s actual or perceived status as an
`essential employee, status as a person impacted by COVID-19, or
`receipt of a rent concession or forbearance for any rent owed during
`the COVID-19 period,” with violators facing fines of $2,000 to $10,000.
`Id. §§ 27-2004(a)(48)(f-7), 27-2115(m)