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Law360 (March 24, 2021, 3:45 PM EDT ) A state agency's decision to temporarily waive the rule that certain New York City tenants must be sued for eviction before they can apply for rent relief is "the epitome of 'too little, too late,'" low-income renters argued Tuesday in New York Supreme Court.
The policy, issued this month by New York's Office of Temporary and Disability Assistance and effective at least until May 1, eliminates a "lawsuit requirement" in the city-administered Family Homelessness and Eviction Prevention Supplement program, through which families can receive up to $9,000 to cover rent arrears.
A proposed class of New York City renters sued OTDA in February over the requirement, which they say violates state social services law and amounts to a violation of due process during the pandemic because the virus has ground most eviction proceedings to a halt. New York's current anti-eviction law is in place through April.
The agency argued in filings this month that the tenants' claims "are moot following issuance of the waiver."
But the plaintiffs pushed back in a Tuesday motion, seeking an injunction to block the lawsuit requirement while their case proceeds. The tenants said they want to lift the $9,000 cap on the program's rental assistance payouts because many tenants have accumulated higher arrears over the past year, noting that the temporary waiver does not address this issue.
Also, they argued, May 1 is right around the corner. The waiver is "set to expire in five weeks, at which point defendants' unlawful enforcement of the lawsuit requirement will resume," the tenants claimed. "By the time many families learn that they are eligible for FHEPS benefits under the limited waiver and are able to submit an application, the limited waiver will have ended."
The OTDA argued in a March 11 filing that the tenants misinterpreted the definition of "adequate shelter allowances" in New York Social Services Law to challenge the rental assistance policy.
"Plaintiffs improperly attempt to expand the concept of 'adequacy' ... and impose a duty of 'adequacy' on defendants based on accessibility to and eligibility for the allowance," the state argued.
But the plaintiffs rejected the OTDA's "strained interpretation" Tuesday, saying a payment "that a needy family cannot legally access, or cannot access without grave risks of eviction, infection, or death, is plainly not 'adequate.'"
The proposed class of renters is led by plaintiffs Maoli Soriano and Shealean Smith, both renters from the Bronx. Soriano's arrears are currently $13,046.71, according to an affidavit submitted Tuesday, while Smith's are $11,292.46.
The class would include city renters who qualify for the assistance "but for the fact that their landlords have not sued them for eviction for failure to pay rent," according to plaintiffs, who predict thousands of families clear that bar.
The OTDA has opposed the plaintiffs' class certification efforts throughout the case, arguing in part that members lack the requisite "commonality" for certification because they have different arrears totals and health factors that would affect their risk level in accessing housing court. The plaintiffs called these differences "minor" on Tuesday.
Counsel for the state did not immediately reply to a request for comment Tuesday. The Office of Temporary and Disability Assistance said it does not comment on pending litigation.
In a written statement to Law360, Lilia I. Toson of the Legal Aid Society, counsel for the plaintiffs, said Soriano and Smith are ineligible for the rental assistance now that their arrears exceed $9,000.
"That is a situation entirely of defendants' own making — and one that the temporary waiver does not solve," Toson said.
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 Hughes 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 Rich Mills
For a reprint of this article, please contact reprints@law360.com.
