By Emma Whitford

Law360 (March 16, 2021, 4:15 PM EDT) -- Low-income New York City renters who receive government assistance no longer need to be in eviction proceedings in order to apply for help with their pandemic-era rent arrears under a temporary state policy publicized Tuesday.

The policy, issued this month by New York's Office of Temporary and Disability Assistance and effective at least until May 1, eliminates a so-called "lawsuit requirement" in the city-administered Family Homelessness and Eviction Prevention Supplement program.

Typically, families can apply to receive up to $9,000 to cover their rent arrears through FHEPS, but only if their landlord has sued them for eviction. This requirement created a unique impediment for families who fell behind on rent during the COVID-19 pandemic, because a patchwork of anti-eviction orders has blocked or dissuaded most landlords from filing eviction cases over unpaid rent for the past year.

Before the new policy took effect it was "impossible" to get FHEPS because "you have to be sued," explained Lilia I. Toson, supervising attorney in the Civil Law Reform Unit at The Legal Aid Society, which is currently suing the OTDA over coronavirus-era limitations to the program in New York Supreme Court.

The state's latest anti-eviction law, in place until May 1, allows renters facing economic hardship or serious health risks to fill out a form to pause or prevent an eviction case from proceeding against them.

"OTDA will agree to amend the FHEPS rent supplement plan to waive the 'lawsuit requirement' until at least May 1, 2021, or until such time as the eviction moratorium ... is no longer in effect," wrote OTDA Commissioner Michael P. Hein in a March 2 letter addressed to New York City's Human Resources Administration, which administers the program. 

Applicants must present either a rental demand or letter threatening eviction from their landlord, as well as a hardship form, in order to apply for relief under the modified policy, according to the state.

The Legal Aid Society shared Hein's letter in a press release Tuesday, urging the state to take additional measures.

OTDA should lift the $9,000 cap on rental payments and suspend the lawsuit requirement beyond the effective date of the state's current anti-eviction law, Legal Aid's Toson told Law360.

"During the time that they've refused to act, a lot of people have accumulated arrears in excess of the $9,000 threshold, so a lot of families have been made ineligible because they had to wait so long," Toson said, citing arrears among her clients as high as $20,000.

"Once the eviction moratorium is over, if the pandemic is still going, we don't want to force people to go to housing court to get these petitions," she added.

Her team will continue to pursue these modifications in court, Toson confirmed. The Legal Aid Society and Hughs Hubbard & Reed LLP are representing a proposed class of low-income New York City tenants, led by plaintiffs Maoli Soriano and Shealean Smith, both renters from the Bronx.

Soriano and Smith receive government assistance but say they have not been able to apply for FHEPS because they have not been sued during the pandemic. Their suit accuses OTDA of violating due process, as well as the New York Social Services Law. 

Jay Martin, director of the Community Housing Improvement Program, a trade group for New York City landlords, celebrated the new rental assistance policy and urged the state to extend it beyond this spring. CHIP has actively lobbied for government rental assistance during the pandemic.

"We see no reason why this shouldn't be a permanent change," Martin told Law360. "Tenants in need should not be forced to go to Housing Court in order to get rent assistance. It's disrespectful, cruel and inefficient."

New York City's Human Resources Administration told Law360 that it is pleased with the modified policy, is planning outreach to educate renters, and supports plaintiffs' calls for lifting the assistance cap. 

"[W]e advocated for the state to adjust their policies on ... rental assistance to ensure clients can continue to apply for this help to pay their rent while this crisis persists, and don't lose the benefit — or worse, their homes — because of an arbitrary requirement that the tenant had to be sued first in order to get help that is no longer applicable during this crisis," the city agency said in a statement. "We appreciate the State's recognition of the need and their willingness to accommodate our request on behalf of the families who we serve." 

OTDA declined to comment Tuesday, citing the pending litigation. But in a filing Thursday, the state argued that the temporary suspension of the lawsuit requirement makes the proposed class' claims moot. 

"Indeed, the lawsuit requirement is no longer in effect, begging the question of whether a single proposed class member continues to meet the proposed class definition," the state wrote.

The proposed class of renters is represented by Lilia I. Toson, Susan C. Bahn, Amber Marshall, Kat Meyers, Brooke Drew and Sharone Midovsky of the Legal Aid Society and Fara Tabatabai and Brittany R. Cohen of Hughs Hubbard & Reed LLP.

The state is represented by Rene F. Hertzog and Vivian Costandy Michael of the Attorney General's Office for the State of New York.

The case is Soriano, Maoli v. New York State Office of Temporary and Disability Assistance, case number 450315/2021, in the Supreme Court of the State of New York, County of New York.

--Editing by Andrew Cohen.

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