By Emma Whitford

Law360 (February 9, 2021, 5:46 PM EST) -- New York City housing courts say they have received fewer than 2,300 forms from tenants seeking to pause or prevent eviction cases until May 1, frustrating advocates and attorneys more than halfway through a near-total statewide hold on evictions.

Under the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, most eviction cases are on hold for 60 days ending Feb. 26. Tenants who fill out a so-called "hardship declaration" form, attesting that they are struggling financially or that moving would pose a serious health risk, are protected for a longer period, until May.

But relatively few tenants in New York City have submitted forms so far, raising questions about the success of outreach efforts both by the court and advocates themselves.

For context, nearly 38,000 residential eviction cases have been filed in New York City since courts began accepting new filings in late June, according to New York University's Furman Center. The backlog of prepandemic cases is believed to be much larger.

Of the 2,248 forms received physically and electronically as of Feb. 4, 1,745 are in pending eviction cases, according to the courts. Another 503 were submitted proactively by tenants who have not yet been sued for eviction.

Lucian Chalfen, a spokesperson for the Office of Court Administration, defended the courts' efforts, including a statewide mailing of hundreds of thousands of hardship forms in the third week of January. (Return rates outside of the city were not immediately available.)

The office also posted the form on the state courts website in multiple languages and set up email addresses for tenants to submit completed forms within the five boroughs, as well as in-person drop boxes. When courts start hearing cases again in March, Chalfen said, judges "will inquire from tenants in court ... and give tenants the chance to fill out the form if they qualify."

Judge Jean T. Schneider, who supervises Manhattan's housing court, emphasized this in a January Zoom call with tenant and landlord attorneys.

"I can promise you that when we start hearing cases again, the first words out of the judge's mouth to the respondent side is going to be, 'Did you file a hardship declaration?'" Schneider said. "And if the answer is 'yes,' the case will stop, and if the answer is 'no,' the judge will say, 'Did you want to?'"

This option for tenants who don't submit forms before the month is out is reassuring for Ellen Davidson, an attorney with the Legal Aid Society.

"[W]e are gratified that OCA ... will be directing judges to give tenants a chance to sign the declaration," Davidson said.

The lag in submissions may be due in part to the challenges tenant attorneys are facing in advising their clients remotely during the pandemic, she added.

"Some of our clients experience difficulties with literacy, so we might want to go through the form and really help them fill it out, which may involve some mailing back and forth," Davidson explained, urging unrepresented tenants to contact 311 for advice.

Other tenants might simply still be waiting to receive the form in the mail, said Lisa Faham-Selzer, who represents landlords at Kucker Marino Winiarsky & Bittens LLP.

But Cea Weaver, an organizer with the statewide tenant group Housing Justice For All, said the hardship form return rates are "totally concerning" and that advocates' goal is to save tenants the stress of appearing in court at all, for as long as possible.

"We don't want people to have to go to court, period," Weaver told Law360. "One of the reasons we were excited about this form is that it could prevent a case from happening and people could signify affirmatively, 'I can't pay my rent. Please don't take me to court.'"

In an effort to reach as many tenants as possible across the state, Housing Justice For All launched a website in early January for tenants to submit forms directly to their local court. Another website launched last week in collaboration with JustFix.NYC, a nonprofit that builds technology tools for tenant groups.

Together, the sites have submitted about 2,000 hardship forms statewide, according to Weaver. Housing Justice For All also says it has distributed 20,000 informational door hangers statewide in English and Spanish.

"I think this shows that during a crisis situation, which is what we are in, asking people to fill out paperwork is not an effective way to get people support," Weaver said.

State Sen. Brian Kavanagh, who co-sponsored the anti-eviction bill that established the hardship form, told Law360 by phone Tuesday that "there's no bonus for getting the form in early" and that even if qualifying tenants don't learn about the form until they get to court, they can still be protected from eviction — potentially beyond May 1 if infection rates merit adjusting the law.

"The best advice for tenants is if you're having a hardship you should fill out the form and turn it in, so I don't want to minimize that, but I also don't think this is a crisis or an indication that the statute is not working at this point," Kavanagh said.

But Olga Someras, general counsel for the Rent Stabilization Association, a landlord trade group, told Law360 that the low return rate of hardship forms is proof that the courts didn't need to put nearly all cases on hold for two months and that doing so was "not necessary or helpful."

"I am disappointed that the entire court system has been forced to screech to a halt for the sake of a few thousand hardship declarations," she said.

According to the Legal Aid Society's Davidson, this should serve as a learning experience for the state legislature as it continues to come up with a distribution plan for a new injection of $1.3 billion in federal rent relief.

"I do think this points to a question of outreach and marketing," she said. "And I certainly hope whoever is designing the rent relief program is taking some time to figure out how to reach isolated communities."

Update: This story has been updated with additional information about court outreach efforts. 

--Editing by Jay Jackson Jr.

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