1 LEADING THE LAMBS TO SLAUGHTER Kings County Housing
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LEADING THE LAMBS TO SLAUGHTER Kings County Housing Court Solutions for a Dysfunctional System Steve Rosner FIRST PRINTING March 2011 2 DISTRIBUTION LIST New York State Cuomo Duffy Andrew M. Robert J. Governor Lt. Governor New York City Bloomberg Cestero Diaz Jr. Greene LiMandri de Blasio Michael R. Rafael E. Ruben Aurelia Robert Bill Mayor Commissioner Housing Preservation and Devel. Bronx Borough President Deputy Bronx Borough Pres. Commissioner Department of Buildings NYC Public Advocate New York City Council Barron Brewer Comrie Jr. Crowley Dilan Fiddler Gennaro Jackson James Lander Mark-Viverito Mendez Oddo Quinn Rivera Ulrich Vann Williams Charles Gale A. Leroy G. Elizabeth S. Erik Martin Lewis A. James F. Robert Letitia Brad S. Melissa Rosie James S. Christine C. Joel Eric Albert Jumaane D. District 42 District 06 District 27 District 30 District 37 District 46 District 24 District 07 District 35 District 39 District 08 District 02 District 50 District 03 District 15 District 32 District 36 District 45 Speaker NY State Assembly Canestrari Kolb Lopez Mayerson Robinson Silver Towns Weinstein Ron Brian M. Vito J. Nettie Annette Sheldon Darryl C. Helene E. District 106 District 129 District 53 District 27 District 56 District 64 District 54 District 41 Majority Leader Minority Leader Speaker NY State Senate Adams Diaz Golden Rivera Sampson Skelos Squadron Eric Ruben Martin J. Gustavo John L. Dean G. Daniel L. District 20 District 32 District 22 District 33 District 19 District 09 District 25 Minority Leader Majority Leader 3 DISTRIBUTION LIST (continued) New York Civil Court Alt Fisher Lippman Pfau Carol Fern A. Jonathan Ann Chief Clerk Deputy Chief Adm. Judge Chief Judge Chief Adm. Judge Kings County Housing Court Chin Finkelstein Fiorella Fitzpatrick Gonzales Heymann Hoyos Lansden Lau Marton Milin Ofshtein Saxe Silkowitz Tropea Oymin Marc Anthony J. Thomas M. Cheryl J. George M. Inez John S. Laurie L. Gary F. Maria Eleanora Phyllis Marcia Angelo Housing Court Judge Housing Court Judge Housing Court Judge Housing Court Judge Housing Court Judge Housing Court Judge Housing Court Judge Supervising Judge Housing Court Judge Housing Court Judge Housing Court Judge Housing Court Judge Housing Court Judge Housing Court Judge Clerk of The County Advisory Council for Housing Court Allman Kimberly Member Aviles Nelson Member Brett Matthew S. Member Callahan Jean Member Conner Gary R. Governor's Representative Hariri Ronald D. Member Himmelstein Samuel J. Member Jackson Wanda Member O'Toole Eileen Member Rivera Jenny Member Rosenberg Joseph Mayor's Representative Soong Arthur J. Member Zimmerman Derryl Member Metropolitan Council on Housing Del Valle Kilgour Lawrence Schaeffer Sommer Jackie Vajra Stuart Kenny Scott Board of Directors Board of Directors Board of Directors Board of Directors Board of Directors Chair Vice Chair Board of Directors Board of Directors Vice-President Board Member President Assistant Director Executive Director Northwest Bronx Clergy Coalition. NYC Housing Development Corp. Housing Court Answers Housing Court Answers Vice Chair City Wide Task Force Goldiner Russo Judith Sandy Other Stakeholders Hunter Jahr Laurie Seeley Desiree Marc Jennie Louise 4 INVOCATION God stands in the gathering of the judiciary. In their midst, He will pronounce judgment. How much longer will you judge corruptly, And decide in favor of the wicked? Protect the downtrodden and fatherless; Do justice to the poor and afflicted. Exonerate the impoverished and the destitute; Deliver them from the hand of the wicked. They do not apprehend; they fail to understand. They walk about in darkness. Thus the foundations of the earth stagger. Psalm 82: v1-5 Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them...Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? George Washington: Farewell Address Practically nothing we do ever stands by itself. If it is good, it will serve some good purpose in the future. If it is evil, it may haunt and handicap our efforts in unimaginable ways. Eleanor Roosevelt 5 PREFACE If the title offends you, I make no apologies. In fact, it understates reality. With few exceptions,1 Housing Court, at least in Kings County, is so one-sided; the judges and other personnel so stressed; the facilities so inadequate; the procedures and computer systems so antedated; that justice is an endangered species. Because of massive caseloads, the emphasis is almost totally on processing cases, with little regard to equity/fairness. Moreover, pro se litigants are treated with, at best, reluctant tolerance (i.e. one must be politically correct); at worst, disrespect—despite what is claimed in Housing Court publicity. And when considering the families of litigants, the impact is profound, affecting over a million New Yorkers a year! Indeed, a 1997 Housing Court initiative, “Breaking New Ground,” described many of the problems that are detailed herein. It stated: The combination of massive caseloads, litigants largely unfamiliar with the legal process and limited judicial resources has resulted in an environment that more closely resembles a hospital emergency room than a court. Courthouse decorum is noticeably lacking, with facilities ill-equipped to accommodate the large number of litigants that appear daily...forming long lines in the Clerk’s Office. Litigants, often accompanied by children, can wait for hours for their cases to be called and the opposing party to appear. If resolution cannot be reached they are given a future date to return for trial. Throughout the process, settlement negotiations take place in every corner of the courthouse—resulting in stipulated agreements that in many cases are not honored and, as a consequence, tenants returning to Court for Orders to Show Cause to forestall evictions.2 Good intentions notwithstanding, the 1997 initiative has largely failed3 because it never truly solved the major cause of the dysfunction: massive caseloads. Rather, the procedures put in place 1 Eleanora Ofshtein is one. Gifted, compassionate, and fair, she does not distinguish between rich or poor, represented or pro se. Using all her formidable skills, she works hard to have the litigants come to an agreement in which both parties retain their dignity and can start to heal. She also exhibits incredible patience, as with two opposing attorneys who were totally unprepared and wasted the Court's time arguing whether a tenant check was part of a stipulation previously agreed to or a rent payment prior to the stipulation. While both attorneys were fumbling with their papers, Judge Ofshtein took out a calculator and quickly discovered even if the check represented the stipulation payment, there was still $200.00+ due the landlord that neither attorney was aware of. After they left the courtroom with the allocation of the funds still unclear—requiring yet another Court appearance—I remarked, "Those parties didn’t need attorneys, they needed a good accountant.” Judge Ofshtein could only smile at the truth of same. One can only hope that one that outstanding is recognized, and sooner than later be given management responsibility where she can inspire compassion, teach Court officers techniques of mediation, and inculcate her love for justice. 2 Judith S. Kaye and Jonathan Lippman. “Breaking New Ground.” New York State Unified Court System September 1997: p. 2. <http://www.nycourts.gov/nyc//housing/pdfs/housing_initiative97.pdf> 3 See “Letter to Judge Fern Fisher-Brandveen” from Joint Legal Services and Legal Aid Task Force on Housing. <http://www.metcouncil.net/publications/Jan00/brandveen.html> 6 were geared to process cases—even projecting caseloads to increase. Thus, fourteen years later, conditions are as bad or worse, as the number of new landlord/tenant cases in 2009-2010 approached 250,000. (See Appendix A.) Accordingly, unless caseloads are significantly reduced, the pressure on the system will remain relentless, reforms will merely be band-aids, and justice will consist of, at best, only a light at the end of a long tunnel. Yet Housing Court reform is not as formidable as it might appear. The causes are obvious and the solution is clear. A few innovative legislative and procedural changes are all that are necessary to accomplish the dual goals of (1) significantly reducing new cases, and (2) evening the playing field between pro se litigants and those who are represented—not to mention the positive impact upon New York City’s long-standing policy to maintain housing standards, so residents are not forced to live under hazardous or marginal conditions. (I should make it clear I am not advocating for tenants per se—although it is true the overwhelming majority of the poor and unrepresented are tenants—but for justice.) I took upon myself the challenge of writing this report after experiencing the trauma of Housing Court first hand, hoping it might somehow make a difference in the lives of those who daily suffer the same indignity that my wife and I have been put through. I have delineated the major problems and have proposed solutions that should help significantly narrow the gap between the haves and haves-not—for the overriding concern should be one of justice. Including scheduled court appearances, I have been at Housing Court almost a dozen times to do research, sit in at hearings and trials, and have talked to enough people to assert the overwhelming majority would agree the system is broken. And while the report addresses Kings County Housing Court, it should be applicable to the other boroughs as well. Note this work is totally independent—neither commissioned nor requested—and I take full responsibility for what lies within. I received no compensation, nor would I, if offered. I also paid for the not inconsiderable expense in the printing and distribution of this document. Needless to say, this document is in the public domain and the reader might inform other stakeholders who would find it useful it is available at: www.teebrews.com/kchcreport.doc. 7 Finally, if I can be of service to the legislature or judiciary—in an ongoing or advisory capacity—in implementing these or other initiatives in order to advance the cause of justice, please get in touch. My contact information is below. I earnestly appeal to state legislators on the distribution list to pay special attention to this report and distribute copies to their colleagues. Likewise, I adjure the Mayor, City Council, and Judiciary management to consider those proposals that they have jurisdiction over. The reader would also do well to visit Kings County Housing Court in person—anonymously, if possible—especially Monday or Tuesday morning—and observe with your own eyes and ears if what is described in the 1997 initiative above is exaggerated. Ignoring this problem casts a black eye upon the City of New York—where hundreds of thousands of its residents suffer yearly for lack of justice. On the contrary, should not New York City Housing Court be a model for landlord/tenant disputes in major cities across America? It is not surprising that of all the issues New Yorkers are concerned about, “Housing” is number 1 by far, as can be seen by statistics the New York City Council keeps. (See Appendix B.) I hope and pray that a love of justice will inspire the will of our shepherds—you, the legislature, the judiciary, state and local officials, the heads of stakeholders—to do what you can to reform the system, let “justice flow as a river and righteousness as an ever flowing stream,”4 and leave a legacy that your children and grandchildren will be proud of. Steve Rosner March 15, 2011 CONTACT INFORMATION Steve Rosner 2922 Nostrand Avenue - 3L Brooklyn, New York 11229 919-673-4641 (cell) 718-252-2691 (home) smrosner@optonline.net 4 Amos 5:24 8 CONTENTS Section Page Distribution List........................................... Invocation.................................................. Preface..................................................... Contact Information......................................... Introduction................................................ A Day at Kings County Housing Court......................... 2 4 5 7 10 12 SECTION I - CASELOADS Introduction.............................................. REDUCTION OF CASELOADS.................................... Attesting to Apartment Repairs.......................... Multiple Dwellings...................................... Strictly Limiting Adjournments.......................... More Successful Negotiations............................ ADDITIONAL MEASURES....................................... More Judges............................................. Computer Scheduling..................................... Night Court............................................. 13 14 14 15 15 16 17 17 17 17 SECTION II - JUDGES Upgrade Housing Court Judgeships.......................... Term Limits............................................... “Stipulation” Judges...................................... Continuing Education...................................... Advisory Committee for Appointments....................... 18 18 19 19 20 SECTION III - HEARINGS Resolution Hearings....................................... Current Resolution Hearing Procedure...................... Proposed Procedure........................................ New Non-Payment Cases Procedure......................... Consistency of Judges’ Rules.............................. Record Of Proceedings and Decisions....................... 21 22 22 23 24 24 SECTION IV - FACILITIES AND ADMINISTRATION Filing an Answer.......................................... Separate AND Unequal - Attorney Privileges................ Help/Resource Center...................................... Inadequacy of Answer Form................................. Proposed Non-Payment Answer Form.......................... 25 25 26 26 27 SECTION V - HOUSING COURT ADVOCATES Housing Court Advocates................................... 28 SECTION VI - QUALITY CONTROL Introduction.............................................. Measuring Court efficiency................................ “Measures” of Justice..................................... 31 31 32 9 CONTENTS Section Page SECTION VII - LEGISLATION 1. Requiring Disclosure of Tenants Rights on Leases....... 2. Restricting Non-Payment Petitions for Mult. Dwellings.. 3. Repeal of RPAPL: Sections 745 (2)(a)(b)................ 4. Repeal of Multiple Dwelling Law: Section 302(a)(3)(c).. 5. Modifying RPAPL 732: Spec. Provisions in Non-Payments.. 6. Requiring Petitioner to “Attest” to Apartment Repair... 7. Requiring Hard Copy Summary of Resolution Hearing...... 34 36 37 37 38 39 40 A CASE STUDY Introduction.............................................. Case Background........................................... Answering the Petition.................................... Initial Hearing........................................... Settlement Offer.......................................... Help Center............................................... Amended Answer............................................ Second Court Appearance................................... Third Court Appearance.................................... Fourth Court Appearance................................... Settlement Conference at Landlord’s Office................ Fifth & Last Court Appearance............................. 41 41 42 42 43 43 44 44 45 46 46 47 POEM: LOSING MY FAITH....................................... 48 APPENDICIES Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix Appendix A B C D E1E2E3F G H I - New Landlord/Tenant Cases 2009-2010............ NYC Council: Constituent Requests: 2009........ Record of Appearance Summary - Prototype....... Current Oral Answer Form....................... Proposed: Non-Payment Answer Form: Part I...... Proposed: Non-Payment Answer Form: Part II..... Proposed: Non-Payment Answer Form: Instructions Stipulation Data Entry Sheet................... Legislative Bill A2996-2009: Selected Excerpts. Proposed: Resolution Hearing Sign-In Sheet..... Essay: “The Story of Our Life”................. 49 50 51 52 53 54 55 58 59 61 62 10 INTRODUCTION Nothing is more valuable than one’s home: psychologically, physically, emotionally. Moreover, the sanctity of the home is guaranteed by our constitution. Whether one owns or rents, lives in an urban or rural setting, common sense dictates that with no place to call home, a human being loses a bit of his/her humanity and is fortunate to survive, let alone thrive. Accordingly, when there is a threat to remove someone from his/her home, it cannot be treated routinely or arbitrarily, but must be given special attention to insure there is truly a valid and just reason for doing so. One must also be mindful that during the period of uncertainty, the threat itself wreaks havoc with one’s life, and causes anxiety and suffering beyond what can be imagined, unless one has experienced it first hand. No words, poem, essay, or report can possibly convey the despair and the impotence the average pro se litigant feels every day in Housing Court. Only one who has personally gone through the process—and spent their days in a venue that tries one’s sense of justice and assaults one’s dignity—can truly understand. Once and for all, something must be done to alleviate this blight upon New York City. Budgetary considerations are no excuse! Indeed, when one acts righteously, economic prosperity follows. The only thing precluding reform is will. If those in power deem it a low priority, nothing will be accomplished. But just as avalanche starts with one drop of water, it only takes one or two individuals to start the ball rolling. Every problem has a solution and much can be done with little effort or cost. This paper’s recommendations should help significantly. At the very least, let us give those who are drowning in the ocean of Housing Court a life raft. The report itself is divided into a number of sections as follows: Section I discusses Caseloads and how to substantially reduce them. Section II discusses Judges and Section III, Hearings; how to insure they are fair, neutral, dignified. Section IV has recommendations to make Facilities and Administration more equitable and efficient. Section V proposes the creation of a Housing Court Advocate with limited powers to represent litigants in Non-payment cases, the benefits of which forward thinking individuals should see immediately. Section VI suggests some simple measures for Quality Control, for the court needs a feedback system to monitor efficiency and to ensure reforms are having the intended effect. Finally, Section VII details major Legislation necessary to go hand-in-hand with reform. 11 A case study—our own—without names or dates, follows. Admittedly subjective, it nonetheless should give the reader a sense of what pro se litigants routinely go through and put some meat on the bones of the abstract. We are not asking readers to judge the merits of our particular case, nor are we seeking to embarrass those whom we feel acted improperly, but unless there is some description of what typically occurs, it is easy for the reader to gloss over mere statistics. It should also prove helpful by illustrating many of the problems that need rectifying. Note this report is focused almost solely on Court related matters—particularly Non-payment cases—in which reform will have the biggest impact. Many recommendations can be instituted initially at Kings County Housing Court—or even in selected courtrooms—on a trial basis, and those that have the intended effect be instituted city wide. Peripheral problems that need to be addressed, such as the blacklisting or the impairing of credit ratings of tenants who are sued, are beyond the scope of this report. 12 A DAY AT KINGS COUNTY HOUSING COURT A Resolution judge yelling at a woman pro se litigant, “Move back and get your hands of my bench!” (The woman, caught up in the emotions of trying to communicate she was alone with two young children, yet for over a month her landlord did not fix the bathroom wall that partially collapsed, had inadvertently gotten too close for the judge’s comfort.) A woman, apparently misinformed by court personnel, complaining out loud as she waited for an elevator, “This court is a joke. Why was I told to come here today, waste half-a-day and spend money for carfare, and now I just have to come back again.” A pro se woman tenant yelling at the attorney for her landlord in the hallway, “What is wrong with you! Why are you taking me to court and making claims for 6 months rent? I am only two months behind! I informed my landlord that I lost my job and just need a little time to catch up. I got a new job, but have been here everyday this week and am losing money by not working!” A judge granting a motion for an adjournment despite the status of Final for Trial—on the basis that the new attorney of record did not have a chance to meet with his client, despite over three weeks since the previous adjournment—and telling the pro se tenants who objected, “Well, that was the road you decided to take.” A guard being rude to a senior citizen who, when the buzzer went off as he went through security, did not comprehend at first the instruction to lift up his pants legs. “Why don’t you listen to what I told you!” the guard chided the man, raising his voice. A two year old bawling without stop and heard throughout the floor, as if he was the town crier for all the poor and frightened who were suffering by way of being sued and in danger of being evicted. 13 SECTION I - CASELOADS Introduction It is clear that the major cause of Housing Court’s dysfunction is the sheer number of cases— almost 250,00 in 2009-2010. There are too many litigants, too few judges, and inadequate facilities to handle the overwhelming number of cases—90 percent of which are Non-payment. On a daily basis, burn-out for almost all court personnel is probably less than an hour. Like an overloaded circuit, as soon as that threshold is reached, justice disappears, and everyone begins working in automatic mode, which means process and dispose of each case as quickly as possible without regard to its merits or the dignity of the individual. Yet, while the number of new cases are huge, an even greater problem is adjournments. Because every adjournment requires another appearance, and that is the true measure of the pressure upon Housing Court. Thus, 50,000 new cases a year with an average of one adjournment is far preferable than 30,000 new cases with an average of four adjournments. Even a math-challenged individual can see the former requires 100,000 appearances, while the latter requires 150,000. Although there are no statistics to my knowledge that show the average number of appearances before a case is resolved, I surveyed 100 cases at random initiated in 2010, and found it was an incredible 5.14 (i.e. the average case had over 4 adjournments). That figure needs to be lowered drastically. Even a 20 percent reduction would be huge. First, however, it is important to determine how many cases a Resolution judge can handle in a day. Some judges have 50+ cases during a session of 3 hours, leaving less than 5 minutes per case. (According to an article in The Brooklyn Ink, one judge had 5 different cases at the bench at one time!5) Often there are not enough seats in the courtroom for all the parties. That is just unacceptable. A well thought-out study needs to be undertaken to determine the maximum number of cases that should be scheduled for any judge, where minimum standards and a semblance of justice are in effect.6 Abigail Ronck. “Tenant v. Landlord. A Day in Housing Court.” The Brooklyn Ink October 26, 2010. <http://thebrooklynink.com/2010/10/26/17184-tenant-v-landlord-a-day-in-housing-court/> 6 I might suggest for now the number of cases do not exceed 1 per 10 minutes. Thus in a 7 hour day, the maximum number of scheduled Resolution Hearings should be no more than 42 per judge. To coin a new statistic, Appearances Per Judge per day (APJ) should be calculated and monitored to ensure it is below a set maximum. See page 31. 5 14 REDUCTION OF CASELOADS Attesting to Apartment Repairs As it is imperative to reduce the number of new cases, both landlords and tenants need to be made aware that Housing Court is overburdened and frowns upon Eviction for Non-payment suits— 90 percent of the docket—in which the over-riding issue relates to repairs in the tenant’s apartment. That issue can and should be resolved between the parties without ever going to court by establishing “disincentives” for bringing suits and/or withholding rent unjustly. Legislation is urgently required to penalize landlords who do not make repairs before bringing suit or tenants who withhold rent frivolously, by falsely claiming repairs are necessary. Two possibilities should be seriously considered: (a) Require landlords to attest in their Petition that, to their knowledge, there are no known issues relating to repairs in the apartment of the tenant—unless it is alleged damages were caused by the tenant himself. Tenants, meanwhile, would be advised that if they are withholding rent specifically for lack of repairs in their apartment, they have the option of stating it in their Answer, describing the repair(s) required, and requesting the Court to order an inspection from the Department of Housing Preservation and Development (HPD) prior to the first scheduled Resolution Hearing. If the inspection shows repairs are necessary and damages not the fault of the tenant, a summary judgment would awarded the Respondent and the landlord would forfeit, say, $250.00 which would be deducted from the tenant’s rent.7 The landlord would be precluded from bringing suit until and unless those repairs were first made, but once completed, the tenant would be expected to pay the remainder of the rent, so the case does not return to burden the Court. On the other hand, if the inspection shows the tenant’s claim was frivolous or it was clearly the tenant who caused the damages, the tenant would be fined $100.008 and the case would continue. (b) Regardless of other factors, if a trial is necessary and the finding is the landlord has failed to make apartment repairs as required, he would forfeit a statutory amount—say $500.00—that would be deducted from any other award or abatement the Court may order.9 Implementing these recommendations should have a considerable deterrent effect on the number of new suits brought. 7 The penalty must be high enough to discourage suits prior to making repairs. There must be some fine to preclude frivolous tenant claims relating to repairs, especially since this course of action to the Respondent is optional. 9 The penalty needs to be higher as the landlord wasted the Court’s time by forcing a trial before repairs were made. 8 15 Multiple Dwellings The legislature also needs to enact laws precluding Non-Payment suits by landlords whose building(s) have multiple violations greater than a set number of points. Analogous to the DMV, when an individual’s license is suspended after traffic infractions above a certain total, every HPD or DOB violation of housing code would be assigned a point value, and a landlord’s right to bring suits—including Holdovers—would be suspended if violations open over 6 months from the Date of Issue are greater than the assigned value —sufficient time for a landlord to cure them. Consistent with the fact that leases are contracts, and given objective evidence a landlord is not fulfilling his obligations, the Court should not be burdened to enforce his rights. This will also prove a major benefit to tens of thousands of tenants. It should reduce the number of “slum lords,” protect the existing housing stock, and is consistent with New York City’s proactive policy to protect and maintain buildings, as most recently demonstrated by the City’s “Proactive Housing Preservation Initiative.”10 Although a law is already on the books (Real Property Actions and Proceeding (RPAPL) 732) in which landlords forfeit rent if there is an open hazardous violation over 6 months, it is obviously ineffective. It requires stating so in the Answer as an “affirmative defense”—which pro se litigants could hardly be expected to know about—and deposit of the disputed rent at that time. Moreover, it does not prevent landlords from bringing suit, knowing the chances are almost nil that tenants will use that defense. But it does have the potential of being used for profiteering by unscrupulous attorneys and should be repealed. (See page 37.) Strictly Limiting Adjournments Equally important, the Court must strictly limit adjournments—particularly for Non-payment cases. They needlessly waste the Courts’ resources with hearings that accomplish little, if anything, and should not be given out frivolously.11 There is no reason to adjourn cases based on unproved assertions by either tenant or landlord, such as needing more time to prepare. As adjournments are given out like candy to a baby, a trial, if necessary, might not take place until 4-6 months after the 10 See Press Release 1/13/2011 by Mayor Bloomberg, City Council Speaker Quinn, and Housing Commissioner Cestero. <http://www.nyc.gov/html/hpd/html/pr2011/pr-01-13-11.shtml> 11 Housing Court is a “cash cow” for many landlord attorneys, particularly for multiple dwellings, which unfortunately, some attorneys milk by delays. It is subtle, but every adjournment is to their advantage, regardless who initiated it. The Court must recognize abuses to the system and take steps to eliminate them. 16 initial Petition filing. Yet as most Non-payment cases are settled prior to trial, surely we can figure out how to do so sooner than later. Thus, as a matter of policy and common sense, more time should be given up-front to answer the Petition and before the first Resolution Hearing. Likewise, a trial should never take place the same day as the first Court date, which although rare, could occur, as Respondents are advised in Court publications.12 It is far wiser to allow Respondents to prepare for and concentrate upon resolution, without the added pressure of a potential trial staring them in the face. Only if there is no settlement would a trial be scheduled with enough time—3 to 4 weeks—for both parties to prepare, and adjournments limited for only the most proven assertions—such as medical illness. (See our case study for examples of adjournments for frivolous and unsubstantiated reasons, simply because the landlords’ attorneys were unprepared.) Currently the average number of adjournments per case are so high, they are paralyzing the Court.13 More Successful Negotiations Negotiations would be much more successful if they were conducted with dignity, a sincere effort on the part of the litigant attorneys and Court personnel to hear both sides of the story, and time to discuss the various and sundry aspects of each case. This is totally lacking now! Rather, the current system is an assault to one’s dignity. To go out into the hall where there is no privacy, and where at any given moment dozens of negotiations are going on, with litigants screaming, crying, and some being bullied by attorneys, is ludicrous and a miscarriage of justice. (In our case, my wife, who has multiple sclerosis, was in pain from standing, as there were no place to sit.) Indeed, the whole resolution process has a surrealistic quality, where pro se litigants are intimidated, made to feel inferior, and given to the belief they will not get justice. This should be intolerable. New York City, the largest holder of real-estate, has no excuse for not making adequate facilities available, where negotiations can take place in privacy, with dignity, and ample time to come to some resolution.14 i.e. The Civil Court of the City of New York, et al. “A Tenant’s Guide to New York City Housing Court.” February 2006. page 11. <http://www.courts.state.ny.us/courts/nyc/housing/pdfs/tenantsguide.pdf> 13 See section on quality control, page 32: Footnote 24. 14 Long-term, New York City should consider having satellite “Resolution Centers” at various key points in each borough, using, for example, defunct OTB space. 12 17 As a temporary measure, I suggest assigning empty courtrooms—which abound—to 3-4 parties at any given time. Sitting and discussing the case in relative quiet. would reduce tension, anger, time pressure, and increase—perhaps significantly—resolutions during the first hearing—settlements that would never occur under current conditions. Again, even a 10 percent increase in resolutions at the initial hearing would be huge.. ADDITIONAL MEASURES More Judges Obviously the more the judges the less caseloads per judge. The Unified Court System should make available as many Civil Court justices as necessary to bring the appearance rate down to a manageable level, so burn-out is put off as long as possible. Computer Scheduling Modern technology easily allows automated scheduling, and computers should be programmed to limit caseloads per judge. It is far better to put off hearings for a week or so, than to force massive number of caseloads upon an ill-equipped system. It also gives litigants more time to consider resolving their issues—as ultimately occurred in our case—without court intervention. Night Court Until caseloads drop significantly, the court should stay open at least two nights a week— sessions from 6 PM to 9 PM—both for administrative functions and Resolution Hearings—the latter on a voluntary basis if agreed to by both parties. This will allow the facilities to be used more efficiently and remove some of the pressure from day appearances. 18 SECTION II - JUDGES There can be little doubt that the expertise, patience, bias, demeanor and fairness of the individual judges in Housing Court vary so much that the likelihood an individual case will have the same result regardless of the judge is virtually nil. Yet unless there is reasonable consistency in outcomes, justice cannot prevail. This section is devoted to reforms that would aspire to that goal, recognizing as judges’ decisions are “opinions,” it will never quite reach it. Upgrade Housing Court Judgeships First and foremost, Housing Court Justices need to be recognized as the elite of Civil Court. For in matters of civil law, it is inconceivable that anything could be more important than litigation that has the potential to evict an individual or family from their home. Yet Housing Court judgeships are considered inferior to those of Civil Court, and the procedures differ for appointment. Moreover, Housing Court justices earn $10,000.00 less a year than their Civil Court counterparts—opposite of what should be the case. This needs to be rectified. It should be obvious that only the best, the brightest, the most compassionate, the most knowledgeable, and especially, the most righteous judges should be appointed for Housing Court. At a minimum, their salary should be made equivalent to that of Civil Court justices, and New York City and State would do well to use their public relations power to enhance the prestige of a Housing Court judgeship—to make an appointment something to be vied for and one of honor. This will boost morale among both judges and their court attorneys, and be a motivating force to maintain standards of integrity and neutrality. Term Limits Massive caseloads, unending pressure, and burn-out make it imperative that presiding at Housing Court be interspersed with frequent sabbaticals to rejuvenate. For example, a judge might preside for 9 months at a time, and for 3 months take a break for vacation, continuing education, administrative work and/or special assignments. The legislature should also consider changing the term of an appointment to 6 or 7 years from 5, with the proviso that a judge would serve no more than 2.5 to 3 consecutive years, rotate to Civil Court for a year, and then return to complete his/her service. 19 “Stipulation” Judges For several reasons, the Court should seriously consider establishing a new “Stipulation” Part with 1-2 judges and 2-3 attorneys assigned solely to review and sign-off on negotiated settlements. Independent of Resolution Hearings, it would allow a balanced, less perfunctory, and more impartial determination to ensure the agreement is legally sound, financially accurate, that justice was served, that the terms can be reasonably expected to be carried out, and that the provisions protect both parties to the end of minimizing re-litigation. Moreover, it allows any party who believes he was discriminated against by the Resolution judge, to start with a clean slate and not feel a fast one was being pulled over him. Finally, and not to be minimized, since a settlement is a neutral, if not positive outcome, it allows judges a much needed break from the pressure of contentiousness in both the Resolution and Trial Parts. The argument a stipulation should be overseen by the Resolution judge since he/she knows the case seems to me totally without foundation. First, with hundreds of cases a week and less than 5 minutes on average discussing the case details, one would hardly expect the Resolution judge or his attorneys to know, let alone remember, aspects of the case that would be part of an agreement. Likewise, massive caseloads ensure any review of stipulations in the Resolution Part can only be perfunctory and not in the best interest of either justice or the necessity of limiting re-litigation. Continuing Education Too many judges and especially their court attorneys15 are ill prepared to serve as a catalyst for true resolution. While it is true that some skills are inborn or relate to personality—patience, ability to listen, ability to discern the real issues, compassion—many can be learned. For example, how to approach the litigants, what questions to ask, and how to probe each party to determine what is most important in arriving at a settlement. Accordingly, both judges and their attorneys should be required to take courses in human relations and mediating techniques at least once a year. 15 The quality of court attorneys in the Resolution Parts varies widely. Many of the court attorneys do not understand their function, are not well versed in housing law, and, most disturbingly, see their role as explaining a stipulation that a landlord's attorney has drafted. The landlord's stipulations are almost always used as a framework for fact finding and settlement discussions by the court attorneys. Whether intended or not, this practice gives the Court's stamp of approval to the one-sided stipulations that landlords' attorneys draft. Too often, court attorneys do not make their role clear to pro se tenants, and many tenants think that they work for the landlord. Seeing their function as facilitating speedy settlements, court attorneys encourage, and sometimes intimidate pro se tenants into signing stipulations that do not adequately include terms that address the tenant's rights and legitimate claims. “Letter to Judge Fern FisherBrandveen” op. cit. Footnote 3. 20 For most individuals, how one is treated is far more important than pure dollars and cents. Pride should never be underestimated in getting recalcitrant litigants to consider a compromise. In our case, both court attorneys had neither the skills to make the meeting a comfortable place, nor the wherewithal to listen to our side of the story. Rather they were curt, unskilled in mediation, biased toward the represented party, and made us feel like the system was against us. Nor did they ever inquire whether we or the landlord were willing to make concessions. That, of course, should be Standard Operating Procedure so both sides know where they stand and the probability for settlement. It is also important to have judges and, especially their court attorneys periodically review legislation and case law relevant to landlord/tenant disputes. With concentration almost solely on procedural matters, more than a few lack detailed knowledge of substantive landlord/tenant law. In our case, both the court and landlord attorney failed to comprehend that our counterclaims for abatements, although more than the unpaid rent, were appropriate, as the statute of limitations allows us to go back six years for breaches of “Warranty of Habitability.” (See page 44.) Advisory Committee for Appointments As currently constituted, the committee recommending Housing Court judges leaves much to be desired. Made up of all attorneys, save one, it is seriously skewed against pro se litigants. Serious consideration needs to be given to modify the make-up of this group. At the very least, more legislators should be included, not only because they make the laws, but if they are involved in the process of appointments, they will monitor the Court. Thus, the committee should include at least one Democrat and one Republican City Council member, and a Democrat and Republican State Senator and Assemblyperson. It should also include several lay individuals from both tenant and landlord associations, and a psychologist who can assess whether a judge’s personality and demeanor are conducive to effecting resolutions. 21 SECTION III - HEARINGS Resolution Hearings For non-represented individuals, the psychology of the Court militates against them; a hearing is fraught with anxiety, they are intimidated, and many are afraid to speak out and articulate their position, especially when a judge seems impatient or shows obvious bias in favor of the represented party. Yet even small, subtle changes to procedures could make a world of difference. Two that come to mind follow: (1) Again and again, one hears in court, “Do you have the money to pay the rent?” as almost the first question asked of the pro se tenant. That should be barred. It is inconsistent with the wellestablished fact that a lease is a contract, and if the landlord fails to keep up his part, the lessee can and should withhold rent. It also assumes guilt in a system in which one is innocent until proven guilty, and is an affront to the dignity of the individual. Nor should the Court assume tenants do not have the money for the rent the majority of the time—at least there is no evidence that is the case. If and when serious negotiations get underway, the tenant would be expected to volunteer that information if it proves to be an issue for a stipulated settlement. (2) Typically, the attorney for the landlord calls out the name of the pro se tenant to go into the hall to discuss the case. That also should be prohibited. It is a violation of neutrality and has the effect of making the unrepresented party feel secondary and a victim of the system. Calling out parties for discussion should be the province of only the Court, who would call out the case, have the two parties come to the bench, and have the judge instruct them to leave the courtroom to negotiate if there seemed to be interest on both parts. In fact, the entire resolution procedure is inefficient, wastes much court and litigant time, and needs to be drastically altered. Five separate Resolution Hearings that we attended have demonstrated the above. Each time, lack of efficiency was evident—at least in our judge’s courtroom. For example, although hearings were called for 9:30 AM, at least 1/2 hour went by before any case was called, whether to the bench, the hall, or to the judge’s attorney. Each time, the judge sat there without seeing anyone, or doing anything of substance. At times, it was closer to 10:30 AM before he made a brief announcement of the Court procedure and began calling cases. That is an enormous waste of resources and surely can be rectified with a bit of thought. 22 Current Resolution Hearing Procedure: A sequence number is assigned to each case and posted outside the courtroom. All litigants are asked to look up their number (which is never referred to again), go to the courtroom and check in with the clerk who highlights their name with a yellow marker. Although both parties may have checked in, over an hour can elapse before the case is called, usually by the represented party to go into the hall.16 If there is no progress in resolution, the litigants go back in and wait for the court attorney to bring them into his/her room for further discussion. The wait could take anywhere from 5 minutes to an hour, again, without rhyme or reason. One then returns to the courtroom and waits to be called to the bench. If the attorney for the other side is present that may take ten or fifteen minutes, but often he/she has other cases and is not there. Accordingly the wait can be an hour or more to see the judge, who hears the dispute and may rule upon a motion or two. Then, unless the case is sent to the Trial Part, it is adjourned and—at best—a slip of paper scrawled with the date of the next hearing is given to the pro se litigant. Especially problematic is the amount of time the judge is doing nothing, the amount of time a litigant must wait only for the case to be adjourned, and the lack of documentation in a process in which clerical errors are not infrequent. In our case, we were given a wrong date, and only just discovered it the day before our scheduled appearance. (See page 46.) Proposed Procedure Following are recommendations for changes to the resolution procedure for new Non-Payment cases to help maximize the limited resources. They could and should be implemented ASAP, regardless of the status of any other initiative, and might serve as a prototype for other issues before the Court. The goals in formulating them are (1) to assess and facilitate the willingness of parties to compromise and come to a resolution that day or in the near-future, (2) to maximize the use of the judge’s time so he/she is not sitting idle twiddling his/her thumbs for significant periods of time, and (3) to minimize the time that litigants are in court, especially those who are pro se. 16 As most landlord attorneys have multiple cases, they will check-in, but then disappear for long periods of time. 23 New Non-Payment Cases Procedure 1. Court sessions should begin promptly at 9 AM. An extra half-hour for an equal number of appearances would be significant—there no reason why a session should start so late. 2. Litigants would go directly to the courtroom. (There should be no need for postings outside the courtroom which waste time and energy of court personnel.) Cases would be listed alphabetically by Petitioner’s name with space for the time of arrival next to each party. (See Appendix H.) When a litigant checks in, the clerk would write down the time next to his name. 3. Processing of cases would take place on a first-come first-served basis. 4. When both parties have checked in, the clerk would call out their case and have them proceed directly to the court attorney’s office for a preliminary evaluation. The clerk would write the time in the space provided for quality control purposes. 5. The court attorney would determine whether the dollar amount of the rent is disputed, why rent was withheld, whether either litigant is willing to make concessions, review defenses, including any new ones the Respondent would like to add, and write up a short summary to be placed in the file—preferably on a computer—for the judge. 6. (a) If any party was unwilling to discuss a possible settlement, the litigants would go back to the courtroom and wait until called to the bench. The judge would try his/her luck getting the parties to negotiate. If that failed, she/he would rule on any motions, assign a trial date (mutually agreed to if possible), and dismiss the litigants. (b) If both parties were willing to discuss a possible settlement, the litigants would be directed to leave the courtroom for negotiations and report back to the court clerk. 7. As a result of the litigants meeting outside the courtroom: (a) If a settlement was reached, the parties would follow the procedure for writing up the stipulation, getting it approved and signed off by the judge. (But see proposal on page 19.) (b) If there was progress and the parties desired to request the Court’s help or had questions to the end of getting it resolved that day, they would check back in and remain in the courtroom until they could see the court attorney or judge. (c) If a settlement was not reached, the parties would check back in, and wait to be called to the bench as in 6(a), where the judge would rule on any motions, and set a trial date. 24 Consistency of Judges’ Rules Even a cursory reading of judges’ Resolution and Trial rules point out how wide the variation is. For example, depending on the judge, defaults are entered if a party does not appear anywhere from 1/2 to 2 hours after a scheduled hearing. Again, some judges require written requests for adjournments, others do not. Recognizing the individuality of each judge, there are some rules that should be, nevertheless, identical throughout New York City Housing Court, so a litigant is not unduly penalized by the diversity of judges’ dispositions. While it is beyond the scope of this report to analyze and make that determination, at the very least there should be an identical buffer for defaults. Housing Court administration would do well to review all rules and ensure there is consistency among those that are crucial for justice, neutrality, and efficiency—keeping in mind, rule differences can become especially problematic for pro se parties if the Resolution judge changes during the course of the litigation. Record of Proceedings and Decisions If there is no accountability, it is easy to make decisions based on factors other than the merits. There is too much at stake to allow that. Every officer of the Court needs to be held accountable for his/her decisions. Decisions should not be made at a judge’s whim. Moreover, clerical errors are not infrequent. In our case, we received a handwritten slip for a Court appearance which had a date two days later then the one intended. Only a day before the actual hearing were we made aware—almost by accident—of this fact, else we would have been defaulted, and would have had to waste further Court time by bringing an Order to Show Cause to get the case back on the calendar.17 Accordingly, both parties should receive a computerized summary of the Resolution Hearing before they leave the courtroom. The summary should, at the very least, include the name of the Attorney(s) of Record, the individual who appears as counsel, a description of and short reason for any ruling, the case disposition, and date of the next hearing, if applicable. These days almost every profession, trade, or business produces an automated receipt at the touch of a button. Housing Court should not remain in the dark ages as, given modern technology, that is quite easy to accomplish. See Appendix C for a prototype “Resolution Hearing Appearance Summary.” 17 The Court would do well to use modern technology and, like doctors and dentists, automatically call all pro se litigants a day or two before a hearing to remind them of their appearance. 25 SECTION IV - FACILITIES AND ADMINISTRATION Filing an Answer The first time a pro se litigant goes to Housing Court sets the tone for all that follows. Although subtle, attitude has a profound effect on whether and how quickly a resolution will be arrived at. Unfortunately, the current procedure for answering a petition is so daunting and time consuming that the Respondent is bound to leave depressed, defeated and feeling he/she will not get justice. It very much militates against an early settlement. After waiting on line to see the information clerk, a Respondent gets a numbered ticket and often waits an hour or more before being called. She then goes to a window, behind which a clerk stands; thus, there is no privacy. Together, they go through a check list of generic defenses against the petition and a hearing date is assigned. To answer a threatened eviction under these circumstances is inexcusable. If at the NYC Department of Finance an individual can sit and talk to an adjudicator to defend a $45.00 parking ticket, there is no excuse for not doing at least as much when it comes to a disputes leading to a possible eviction. Housing Court needs to reallocate its space so, at the very least, all Respondents are directed to a cubicle—for privacy—where they can sit and have ample time to discuss their case with the clerk. Separate And Unequal - Attorney Privileges Attorneys have their own “express” service for filing complaints, answers, reviewing court files, etc., while pro se litigants often have to wait hours for the same services. Attorneys also have a “lounge” where they can congregate, which is off limits to other litigants. There is no justification for these discrepancies in treatment. When one party has privileges, justice suffers. Attorneys are well-paid, and can easily hire someone to stand on-line and file their papers akin to service processors. (Even better, each Housing Court can contract for a kiosk of “processors,” who, for a small fee, could serve both attorneys and pro se litigants.) This would free up clerks currently waiting upon attorneys, who can now be added to the overall mix; reducing the wait time for all litigants. 26 Help/Resource Center The Help Center also needs to be upgraded substantially. Besides waiting hours to speak to an attorney, his/her advice is minimal—and is often incorrect, incomplete, or counterproductive. Some, as the one I saw, are not very knowledgeable about the law and, in any case, can only give procedural advice. It is hard to understand what function they serve that a court clerk could not provide. Be that as it may, the Help Center opens 9:30, is closed an hour and a half for lunch, and often those who come in the morning have to waste most of the day there. The Center should open at 8:30 and lunch staggered so there is always at least one attorney on duty. Regarding free use of computers, advertised by the Court, in fact there is only one, at an awkward place where one must stand to use it. Not to mention there is no print facility. Public copy machines, of which there are only two in the entire Court, are old, reproductions are poor, and they often are broken or do not accept dollar bills. This is incredible in this age of technology. The Court needs a true resource center, an area manned and maintained with several computers and a laser printer where one can sit and do research, as well as high quality copy machines which take credit cards— as at Kinkos. That alone could pay for the above. Even these trivial changes would be of immense help to pro se litigants, who, for example, must leave the building to find a copy shop for documents that need to be duplicated. It seems to me vendors would pay for the privilege of placing their copy machines in a setting where demand for copies would be thousands per day. There is no excuse for Housing Court not to have these facilities. Inadequacy of “Oral” Answer Form The current Answer form (see Appendix D) is absolutely inadequate to meet the needs of pro se tenants and needs to be totally redesigned. Defenses listed are not explained (what pro se would know what “laches“ means, or why “Service” was faulty), many key defenses are missing, and just checking them off seems pointless, since it requires the Court and the opposing attorney to spend time at the first Resolution Hearing to get the details. Equally unfair, defenses or counterclaims not specified because of the Respondent’s lack of knowledge may not be allowed later. 27 Additionally, the format of the instructions “Notice of Scheduled Appearance” following the check-list (Appendix D below the double line.) is extremely user-unfriendly—unclear, confusing, printed in bold, capitalized, and strung together—giving it a needlessly harsh appearance, easily misunderstood, and not facilitating compliance. That section of the Answer form should be on a separate page and the instructions made much clearer. Proposed Non-Payment Answer Form At the very least, the Answer form should have an instruction booklet (as the IRS has for each of its forms) designed to give the Respondent a minimum understanding of what defenses he/she may assert. Every listed defense should have a clear explanation in English (and other appropriate languages), defenses not claimed at this time would not be precluded from being added later, and most important, the Answer form should be filled out prior to seeing the clerk—who would review it for form and content, make a duplicate for the Respondent, and file it. A former systems analyst, I have taken the time to redesign the Answer form (Appendix E1), instructions for the first scheduled appearance (Appendix E2), and composed an “Instruction Booklet” for defenses (Appendix E3) based on a 3 digit coding scheme that is clearer, more comprehensive, and allows flexibility as tenant/landlord law evolves. Far from perfect or complete, it nonetheless is a good example of the direction in which the Court needs to proceed. 28 SECTION V - HOUSING COURT ADVOCATES Housing Court Advocates In October 2004, The New York County Lawyer’s Association hosted a two day conference, “The New York City Housing Court in the 21st Century: Can It Better Address the Problems Before It?”18 Over 80 participants and stakeholders from the judiciary, government, landlord and tenants groups, public advocacy organizations, and the academia came together to discuss salient issues relating to Housing Court. Subgroups were formed to research and make recommendations in such areas as “The Adjudicative Process and the Role of the Court,“ “Litigants of Diminished Capacity,” and “Right to Counsel.” Regarding the last, the subgroup’s major findings were as follows: The vast majority of tenants facing eviction proceedings are unrepresented. It is unreasonable to expect pro se litigants to be able to comprehend “the legal possibilities that exist at any stage of a proceeding.” Retaining competent counsel makes a substantial difference in the outcome of Housing Court cases. One direct result of eviction is homelessness. It is common for families who become homeless to enter the NYC shelter system. From an economic standpoint: In the period 1991-2000, nearly $4.6 billion was spent building and maintaining a network of emergency shelters in New York City. In 2004, it cost the City $36,000 per year to shelter a family and $23,000 to shelter an individual. Preventing just 10 percent of the 25,000 evictions each year would yield a savings to the City of roughly $75 million in direct shelter costs alone. Besides the above, the subgroup documented a number of indirect but quite real costs of the consequences of homelessness, including hospitalization for chronic physical and mental health problems, longer hospital stays, disruptions in the education of homeless children, and family disintegration with a resultant increase in foster care costs. 18 <http://www.nycla.org/siteFiles/Publications/Publications195_0.pdf> 29 They concluded: All available data indicate that providing counsel to low-income tenants facing eviction results in substantial identifiable savings. A finding by the Association of the Bar of the City of New York indicating that funds allocated to the Emergency Assistance Fund for anti-eviction legal services kept an estimated 6,000 families in their homes, saving the City $27 million in projected shelter costs in 1996 alone. A 1993 study concluded that “providing counsel to low-income tenants facing evictions in the city would produce a net savings of $67 million.” [In short,] a New York City Department of Social Services report that evaluated a prototype eviction-prevention program, determined that the provision of counsel resulted in saving approximately $4 for every $1 spent.19 Overall, the subgroup consensus was that: • The right to counsel must be recognized for individuals in danger of losing their home due to a legal or administrative proceeding. Counsel shall be appointed based on clear guidelines for those who are unable to afford counsel. • This right is based upon concerns relating to the state and federal constitutions, statutes, costs associated with homelessness, budgetary fairness and other sound public policy.20 Not a legal theorist, it would be presumptuous of me to comment one way or another on the proposition that a Respondent in danger of being evicted has a right to counsel (although that assertion certainly boosts the argument that Housing Court judgeships need to be upgraded), but it is clear than sans counsel, the typical Respondent going up against a landlord attorney is truly a “Lamb Led to the Slaughter.” Nonetheless, mostly on intuition and for reasons I cannot defend logically,21 I would not be an enthusiastic supporter of court-appointed attorneys, but would see it as a last resort. To my mind, a far better solution would be the invention, if you will, of a Housing Court Advocate (HCA). In fact, Housing Court already allows unpaid, non-attorneys to appear for a party—with written notarized permission—to make motions, request adjournments, or even try the case. Accordingly, I would urge the legislature to consider enacting legislation creating an Housing Court Advocate—a licensed officer of the court, based on passing a comprehensive exam on tenant/landlord law—to represent litigants in the specialized venue of Housing Court Non-payment actions. In those cases, they would have full powers as attorneys, similar to Nurse-Practitioners who have many of the 19 Ibid., p. 25 Ibid., p. 30. 21 I imagine it has to do with (1) my sense that being appointed v. being hired is like an arranged marriage v. marrying for love, with outcomes not nearly as good, (2) controlled by the court, these attorneys would not, I fear, be fully independent, and many would succumb to pressure to settle cases quickly or endure the wrath of certain judges, and (3) being assured of income regardless of the outcome, they would not work as hard or be as enthusiastic as independent contractors who could turn down cases they felt were beyond them, in which they felt their potential client was unreasonable, or where the “chemistry” wasn’t right. 20 30 powers of physicians, including the writing of prescriptions. HCAs would be independent contractors with a statutory maximum fee per case, which could include an hourly rate and/or a percentage of any award/abatement. They would be under the aegis of a city or state agency, or voluntary non-profit such as the New York County Lawyer’s Association (to remain truly independent, they should not be beholding to the judiciary), and would make representation affordable for many, if not most, litigants. (By being compensated solely via a contingency fee for the truly poor tenants, almost everyone could get representation.) Knowledgeable in Landlord/Tenant law, HCAs would virtually eliminate the pressure on the judiciary to bend over backwards for a pro se—or, even more likely, give him/her short shrift—and allow it to be the truly independent and neutral body our forefathers envisioned.22 For the longer term, New York City’s CUNY could offer a four year degree program in its colleges for a Housing Court Advocate,23 who, upon graduation, would take a license exam and register with the Court. This innovation would have other benefits as well. For example, landlords could also use HCAs to reduce their expenses in bringing suit, especially in the smaller, simpler Non-Payment cases. As a result, they could be more generous and have more flexibility in negotiating a settlement sooner than later. (Forgive a short digression, but a Housing Court Advocate could be a stepping stone for those considering a legal career, by giving them great experience in practical law. I believe those individuals would make far better attorneys than students who go to law school out of an idealized misconception of what law is about—and are soon disillusioned when they discover the real world of a lawyer bears little resemblance to their fantasies—or worse, see it as a means of status or making lots of money—many in both groups regretting their choice, but too invested in the system to make a change.) 22 I absolutely believe in the wisdom of Scripture that justice can only be served by the merits, without regard to whether one is rich or poor. Thus, “Do not favor the destitute in their cause...Do not wrest judgment of the poor in his cause” (Exodus 23:3, 23:6) is policy we would be quite wise to adhere to. 23 Even a two year Associate Degree could provide the training to function ably in that capacity. 31 SECTION VI - QUALITY CONTROL Introduction Given the fact that Housing Court cannot even cope with current caseloads, putting quality control systems in place to monitor Court effectiveness seems besides the point. But that would be a major mistake. It may be trite, but it is still true that an ounce of prevention is worth a pound of cure. Performance norms and a feedback system needs to be established to preclude future situations from becoming catastrophic. Besides which, quality control need not be particularly complicated. Gobs and gobs of statistics are virtually useless. It should be clear that raw figures, such as cases handled or resolved, mean little. What is meaningful are measures denoting relationships; i.e. the average number of appearances before a case is disposed. If well-thought out, as little as 3 to 4 statistical measures are all that are necessary to monitor the effectiveness of the Court. In this section, I suggest several quantitative measures of performance, with the understanding the actual details have to be worked out by appropriate Court personnel. Two different areas need to be monitored: (1) Whether the Court is functioning reasonably well and is able to handle its workload judiciously (pun intended), and (2) whether overall, the gap between pro se litigants and those who are represented is receding. The former should be straightforward and require little effort, while the latter is a bit more time-consuming; but as justice is the raison de etre for any Court, it is even more important. We discuss each of these in turn: Measuring Court Efficiency Essentially, we are seeking indexes to measure Court performance similar to Earned Run Average (ERA) or Batting Average (BA) for baseball players. Two such measures that seem promising are (1) the average number of scheduled cases—better, appearances—per judge per day (APJ), and (2) the average number of appearances per case (APC) until it is fully resolved— whether by settlement, judgment, default, or dismissal. Once norms are established, APJ would be computed monthly or on a 30 day moving average basis, with different targets for Resolution and Trial judges. If APJ started rising and exceeded a preset limit, it would trigger an early warning for Court management to investigate and correct the 32 cause. Thus, if it were established there should be a minimum of 10 minutes per scheduled appearance at Resolution Hearings, a seven hour day should have an APJ of 42, and a figure above 50 could be set to trigger an early warning (for an individual judge, or the Court as a whole). In the case of Trial judges, if 1.5 hours per trial was deemed adequate and consistent with justice, an APJ of 4.5 or less would be considered good, while one above 6 could trigger an early warning. APC should even be more useful, as that measure would inform Court management whether the average number of appearances—as a result of too many adjournments—is so high it is putting an undue strain upon the Court.24 As is clear, reducing appearances should be the number one priority of Housing Court! Although a base has to be empirically derived, my survey of 100 cases at random resulted in an APC of 5.14—clearly off the charts.25 I would think Housing Court should do everything possible to get it down to less than 3.0. By tracking APC per Resolution judge (it only applies to them), Court management can see at a glance how each judge is managing his/her caseload and whether he/she is being too generous in allowing adjournments, or whether there are other factors necessitating multiple appearances that need to be addressed. A high APC for the Court is, of course, much more serious and would require intervention by state and city officials and the legislature to identify and remedy the problem. Measures of “Justice” To measure whether justice is being served is a bit tricky since no statistic truly can determine that. However, it seems possible to extrapolate whether the gap between pro se Respondents and represented landlords is narrowing by comparing financial outcomes before and after initiatives. Although there are currently no standards to compare to (such as a Batting Average of .300) and without debating the validity of this theory, it seems reasonable to hypothesize that over thousands and thousand of cases, the average “abatement” or deduction from unpaid rent in stipulations should serve as a useful measure. Thus, if prior to initiatives the average waived rent (AVR) was $400.00, How powerful this relatively simple measure is can be demonstrated as follows. If it is decided that for justice’s sake no judge should be burdened by more than 1 case (appearance) every 10 minutes, the maximum that could be scheduled in a seven hour day is 42. Assuming 250 Court days a year, each judge should be able to handle 10,500 separate appearances, while Kings County, which has 14 judges, would be maxed out at 147,000 per year. Yet as in 2009 there were 78,000 new petitions filed, to arrive at that goal requires an APC of 1.89—clearly unattainable. Even doubling the number of appearances allowed (at the cost of justice) to every 5 minutes per judge means the Court could handle 294,000 appearances per year. But that still requires an APC of 3.77 considerably below the one now in effect. It is no wonder that the situation is chaotic. The Court truly needs to add a half-dozen new judges immediately, until initiatives reduce the number of new cases and the number of adjournments drastically. 25 In fact, since I extracted the raw data on-line from Ecourt, which only shows cases still open, the true figure is even higher. 24 33 and after it jumped up to $600.00, we could reasonably assume we are proceeding in the right direction and the initiatives were having the desired effect. (Actually, it would be far preferable to calculate the percentage of rent waived, for if appearances decline and agreements can be reached earlier in the litigation, rent owed would not continue to add up, and “abatements” might not show much change dollar-wise, when, in fact, they were a larger percentage of unpaid rent.) Although the above requires a bit more effort to implement, it is well worth it. For all resolved Non-payment cases in which the landlord is represented while the tenant is pro se, at the Stipulation sign-off, a sheet would be filled out with the Court, Date, Judge, Case Number, Dollar Amount of Unpaid Rent, and Abatement, if any. (See Appendix F.) At the end of each day, sheets would be turned in to a clerk who would enter it into a data base. It would then be child’s play to calculate AVR monthly—per judge, per Court, and for NYC as a whole—and the trend charted. With tens of thousands of cases, AVR would be a powerful management tool for all stakeholders. 34 SECTION VII - LEGISLATION This section summarizes legislation necessary to implement most of the recommendations herein. When dealing with abstractions, it is always helpful to see concrete examples, so there is no misunderstanding or misinterpretation of what is asserted/intended. Accordingly, I have excerpted sections of laws I believe need change/repeal, and have humbly taken the liberty to compose the wording of new legislation equally necessary, in my judgment. I realize that often legislation has the opposite effect of what was intended, or so many loopholes exist that the laws become ineffective, yet given that caveat, we have no choice but to try rectify injustice, while keeping a sharp watch to determine if our initiatives have the desired effect. 1. Requiring Disclosure of Tenants Right on Leases While some progress has been made, leases are still very much skewed in favor of the landlord and can be used in court to abrogate tenants rights. This is inconsistent with the doctrine of fairness and the fact that a lease is a contract. Accordingly, every lease should contain disclosures as to tenants rights and remedies. Indeed, there is a bill in Albany (B2699-09)26 to do just that—at this writing, in the Judiciary Committee. The bill is quite ambitious with amendments to Real Property Law, Multiple Dwelling Law, Multiple Residence Law, Real Property Actions & Proceedings Law and General Obligations Law. From this paper’s perspective, the salient portions of the bill require disclosures that tenants can withhold rent for breaches of “Warranty of Habitability,” including lack of heat or hot water, vermin infestation, unmade repairs, lack of cleanliness, etc. Appendix G contains excerpts of those sections of the bill particularly pertinent to this report, while for convenience, a key section follows: Section 1. The Real Property Law is amended by adding a new section, 235-g, to read as follows: 235-g. Standard Lease Clause. 1. Every written residential lease shall contain the following clauses: a. "Warranty of Habitability" The landlord promises that the apartment and building are fit to live in and not dangerous to the life, health or safety of the occupants. Unless the apartment or building becomes unfit to live in due to the misconduct of the tenant or the tenant's family or guests, the landlord will be held responsible if this promise is broken, even if it is not his fault. Conditions which would violate this promise include, but are not limited to: insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, and inadequate sanitation facilities. If the promise is violated, the tenant may withhold from rent the loss in the value of the apartment due to the violation. 26 See <http://open.nysenate.gov/legislative/bill/A2996> for the full bill. 35 With one or two caveats discussed below, I urge state legislators to pass the bill during this session. Aside from the cause of justice, it should have the practical effect of reducing Non-payment cases. By making tenants rights explicit and conspicuous, landlords will realize they can no longer take advantage of a tenant’s ignorance with impunity, motivate at least some to keep their buildings in good condition, and/or make them think twice about bringing Non-payment suits when conditions in their apartments or buildings are dire. There are two provisions, however, that would be best altered: (1). Section 5(a) of RPL 235(g) states: A violation of any provision of this section or any other provision requiring that residential leases contain specific language shall be punishable by a fine of not more than one hundred dollars.27 It should be clear, however, that penalties for violations must be high enough to induce landlords to conform to the bill’s provisions. For example, statutory fines for DOB or HPD violations are often ineffective, as landlords would rather pay the fine since it is far less then the cost to make the repair(s) and correct the violation. (Not to mention, in many cases, the fine itself remains unpaid on the books of the NYC Finance Department.) Accordingly, it is imperative that fines truly are deterrents. I suggest the following: A violation...is punishable by a fine of not less than $250.00 and not more than $1,000.00. Just the threat of being fined $1,000.00 for failing to place “disclosures” in leases should do wonders. (Especially if New York City is diligent in monitoring conformity and assessing maximum fines immediately after the effective date of the legislation. Word will soon get around in the real estate industry and insure compliance.) (2). The second provision that needs change relates to the obligation of the tenant to deposit rent with the Court if sued for Non-Payment. The provision seems harsh and does nothing to further the cause of justice. On the contrary, it undermines the proposition that a lease is a contract. It occurs in that part of the bill amending the Multiple Residence Law. A new Section, 305-b. Subsection (3) states: If the landlord sues to recover the rent withheld or to evict for non-payment of rent, the tenant must deposit the rent sought with the clerk of the court where the landlord's suit was brought. After depositing the rent, the tenant may not be evicted for non-payment of rent. 27 Author’s emphasis 36 I believe this is a very unwise provision that may have unanticipated adverse effects and should be stricken from the bill. Besides the reasons given above, Housing Court should get out of the business of tenant/landlord banking, which, with 250,000 cases a year, puts an unnecessary strain on an institution not set up for that purpose. Worse, what if a tenant does not deposit rent with the Court? There is no legislative remedy and Housing Court, unless it ignores this provision, will have to preside over the details of tenant non-compliance, issues peripheral—but no less timeconsuming—to its purpose. (See also #3. below.) 2. Restricting Non-Payment Petitions for Multiple Dwellings under Certain Conditions. As discussed in Section I, this is a key initiative to reduce the burden of massive caseloads upon the Court system. For it would suspend a multiple dwelling landlord’s ability to bring Non-payment proceedings against tenants while the building had open violations totaling a certain number of points for 6 months from date of issue. For example, each Department of Housing Preservation & Development (HPD) violation is placed in one of three categories: A-Non-hazardous, B-Hazardous, and C-Severely Hazardous. Thus, if we assign 1 point for each A violation, 3 points for each B violation and 5 points for each C violation. N or more points would then preclude any Non-payment suit.28 The precise number, of course, needs to be carefully worked out and strongly indicate the landlord is not, in good faith, keeping his building maintained. Experts from the Department. of Buildings (DOB) and HPD should be consulted, as well as selected New York City Council members to make a determination how many points constitute unacceptable or willful negligence. I am convinced that a law of this type will have a positive effect on the maintenance of buildings and result in a significant reduction of new Non-payment cases. 28 Given a landlord has 6 months to cure a violation, N should be fairly low—25 does not seem unreasonable. 37 3. Repeal of Real Property Actions and Proceedings Law (RPAPL), Sections 745 (2)(a)(b). As indicated above, a law requiring a rent deposit, in this instance if the Respondent/tenant asks for a second adjournment—notwithstanding they should not be out given liberally—on its face compromises the contractual obligations of a lease and should be repealed. That is the only way of ensuring neutrality. The applicable sections state: In the City of New York: 2. (a) In a summary proceeding upon the second request by the tenant for an adjournment, the court shall direct that the tenant post all sums as they become due for future rent and use and occupancy, which may be established without the use of expert testimony, unless waived by the court for good cause shown. Two adjournments shall not include an adjournment requested by a tenant unrepresented by counsel for the purpose of securing counsel made on the initial return date of the proceeding. Such future rent and use and occupancy sums shall be deposited with the clerk of the court or paid to such other person or entity, including the petitioner, as the court shall direct or shall be expended for such emergency repairs as the court shall approve. (b) In any adjournment of a summary proceeding, other than on consent or at the request of the petitioner, the court shall at the petitioner's request state on the record why for good cause shown it is not directing the tenant to pay or post all sums demanded pursuant to a lease or rental agreement in the proceeding as rent and use and occupancy. 4. Repeal of Multiple Dwelling Law: Section 302(a)(3)(c) Section 302-a(3)(c) allows tenants/respondents to answer a petition by pleading “hazardous” or “rent impairing” violations not complied with after 6 months. If it is proved at trial, as a matter of law, any rent withheld from that time (i.e. 6 months after the violation is issued) would be forfeited by the landlord. However, Section (3)(c) requires tenants to “affirmatively plead” this defense and deposit the rent with the Court pending the case outcome. c. To raise a defense under subparagraph a in any action to recover rent or in any special proceeding for the recovery of possession because of non-payment of rent, the resident must affirmatively plead and prove the material facts under subparagraph a, and must also deposit with the clerk of the court in which the action or proceeding is pending at the time of filing of the resident's answer the amount of rent sought to be recovered in the action or upon which the proceeding to recover possession is based, to be held by the clerk of the court until final disposition of the action or proceeding at which time the rent deposited shall be paid to the owner, if the owner prevails, or be returned to the resident if the resident prevails. Such deposit of rent shall vitiate any right on the part of the owner to terminate the lease or rental agreement of the resident because of nonpayment of rent. 38 While this seems a boon for tenants, in reality, pro se litigants would hardly be expected to know these provisions and to plead same within the 5 days allotted to answer the petition. This was true in our case, as our landlord had—and has—multiple “rent impairing” violations, yet our ignorance at the time precluded this defense. Although the law was no doubt designed to get landlords to maintain their buildings properly, it appears to have little, if any, effect, as the number of buildings that are in violation keep growing.29 Likewise, it seems to have no practical effect on limiting new Non-payment cases as landlords are not precluded from bringing suits. Indeed, it is surprising—and fortunate—that unscrupulous attorneys have not formed partnerships to find and induce tenants in buildings which are technically in violation to withhold their rent, placing it in escrow with said firms, who would represent them in the inevitable suit—for a hefty contingency fee. Accordingly, leaving these provisions in does not seem wise. It should be repealed, in conjunction with the addition of a law precluding suits based upon a violation point system as in #2 above. 5. Modifying Real Property Actions and Proceeding (RPAPL) 732: Special Provisions in Nonpayment Proceedings. While landlord/tenant cases were rightly made summary proceedings, it seems to me the legislature went overboard in the other direction by unreasonably limiting time allowed for both answering a petition and scheduling Resolution Hearings. I believe this is a significant factor in the inability to settle cases sooner than later and has unduly added to the number of adjournments requested. It would be wise to give tenants more time up-front to answer petitions, and prepare for the first hearing, while making it clear a trial will not be held that day. With the extension of time however, litigants would be expected to be ready if a trial is necessary, as the Court would limit adjournments. Moreover, it will also give those tenants, who because of economic hardship could not pay rent, more time to come up with the funds by borrowing from family, friends, etc. All in all, this should significantly ease the pressure on Housing Court. 29 i.e. “Proactive Housing Preservation Initiative” op. cit. footnote 10. 39 The new law might read: 1. The notice of petition shall be returnable before the clerk, and shall be made returnable within five ten days after its service. 2. (a) If the respondent answers, the clerk shall fix a date for trial or for a resolution hearing not less than three seven nor more than eight ten days after joinder of issue, and shall immediately notify by mail the parties or their attorneys of such date. (b) It is public policy to reduce the dependence upon Trial Courts to resolve rent disputes, as well as to limit the burden upon the New York City Housing Court of its huge number of cases. Accordingly, a Resolution Hearing is scheduled prior to Trial for the purpose of facilitating compromises and agreements. Both tenants and landlords are expected to come to the hearing prepared to negotiate a settlement. If, however, a resolution cannot be arrived at, both parties will be given no less than three and no more than four weeks—ample time—to prepare for trial. Adjournments will frowned upon, must be requested in writing, and will be allowed only for very good cause, such as documented illness. 3. If the respondent fails to answer within five ten days from the date of service, as shown by the affidavit or certificate of service of the notice of petition and petition, the judge shall render judgment in favor of the petitioner and may stay the issuance of the warrant for a period of not to exceed ten days from the date of service. 4. The notice of petition shall advise the respondent of the requirements of subdivisions 1, 2(a) & (b), and 3 above. 6. Requiring Petitioner to Attest there are no Outstanding Repairs in the Apartment of the Respondent. This addition to Real Property and Actions Proceedings Law, Article 7, Section 741 (Contents of Petition), should reduce the number of new Non-payment petitions substantially. The law might read as follows: Every Petition shall [state:] 6. “The Petitioner attests that there are no repairs in the apartment of the Respondent about which he has received adequate notice and that are still outstanding. Should the Respondent claim otherwise in the Answer, either the Petitioner was unaware of those claims prior to the filing, or upon information and belief, any damage was caused by the misconduct or negligence of the tenant, tenant's family or guests. 40 7 Requiring a Hard Copy of all Motions & Decisions, and the Disposition in Resolution Hearings. For those who believe in Divine Providence, it is interesting to note that Real Property and Actions Proceedings Law, Article 7, has a section each on “Answers” (743) and “Trials” (745), seemingly reserving, if you will, 744 for future use. But whether or not this is by design, now seems the time to add and populate a new section—744—for “Resolution Hearings.” That section would be designed with the following in mind: (1) to ensure procedural efficiency and neutrality by giving pro se litigants a clear understanding of what took place, (2) to establish judge accountability, (3) to minimize clerical error, and (4) for quality control purposes. All this would occur via legislation introducing the requirements that every Resolution Hearing be automated and documented—with at least minimal information regarding appearances, rulings, and case disposition. To that end, Appendix C contains a prototype “Appearance Summary” that would be printed and given to both parties before they are dismissed. The above, obviously, is not the complete list of legislation necessary to reduce caseloads and ensure equality and neutrality, but it highlights and addresses many, if not most, of the major reforms crucial to making New York City Housing Court an arena where justice prevails. 41 A CASE STUDY Introduction In presenting our case and relating our own daunting experience, we are not asking the reader to judge its merits, but it is important to document the inequity and injustice of a system in which the poor and unrepresented are discriminated against—partly because of judges who are erratic, unaccountable and marginal, and partly because the system negates even good intentions and makes almost everyone—justices, court & landlord attorneys, clerks, supervisory personnel—operate on a level that is perfunctory, arbitrary, sometimes callous, and too often without true knowledge of the law. We believe our experience is not atypical, but is a microcosm for much of what goes on—and should be unacceptable—in Housing Court. Yet despite our indignation at both the system and several individuals we encountered, no names are mentioned, no dates given, nor is it our intention embarrass anyone or seek vengeance. It would not serve the public by focusing on a particular judge or court attorney when it is the system that needs to be addressed and Court management that must ensure all judges are unbiased, held accountable for their decisions, and give each litigant a sense of fair play. And though we felt the Resolution judge favored the represented landlord, and—having no accountability—made several inexplicable decisions resulting in additional anxiety for my wife and myself by delaying our trial for months, the judge is not evil,30 but partly a victim of a dysfunctional system. Case Background Moving to Brooklyn in late 2007, my wife and I subleased an apartment in a multiple-dwelling co-op from a partnership that had proprietary right to “unsold” apartments. Initially, the lease was in my wife’s name. Over the ensuing years, the building was so poorly managed (135+ open violations as of this writing) that after a major roach infestation in June, 2010—which we deemed an emergency ignored by our landlord and forcing us to pay for a private exterminator—we gave our landlord 10+ days written notice that we would be withholding rent unless they agreed to reimburse us for that expense ($140.00) and remove an arrears $4,050.00 on their computer which numerous 30 In fact, our first impression was quite positive. An elderly man needing a cane to walk was being evicted (holdover) when his job of 40+ years with a hospital—which supplied an apartment—ended. Although the law is clear, the judge was visibly moved and gave the man 6 months to find a new apartment. 42 calls and letters could not effect.31 We stated we would waive any and all abatements we would be entitled to over the period of our tenancy if these two issues were resolved. As our letter was ignored, we began to withhold rent, and after 5 months of silence, we received the Notice of Eviction for Non-Payment of $7,000.00. Answering The Petition Unable to afford representation, I answered the petition myself without relying on the inadequate—as asserted earlier—check-list most Respondents use. Among other defenses, I stated the petition was defective on its face because I was not served nor made a party, despite the fact my name was on the renewal lease and all previous rent payments were from my checking account. After serving the opposing attorney, I waited almost two hours simply to file the Answer, but was told it was not acceptable—after the clerk spoke to a supervisor—since my wife’s signature—the name on the petition—was not notarized. “How do we know this is really her signature,” I was informed, despite the fact I could show my name was on the lease and prove my identity. I could hardly believe my ears and though incensed, had to remain silent, return home, redo the answer and take my wife who has multiple sclerosis to a notary, then return to court the next day and wait on line yet another hour before it was filed. Initial Hearing After checking in and waiting more than an hour, the lawyer for the Petitioner called us out into the hall where chaos reigned—dozens of other conferences were going on—and with no place to sit, it was very painful for my wife. The attorney—a young associate of the firm my landlord uses for these cases—seemed ill-prepared, dismissive of our right to withhold rent, and treated us condescendingly. She only wanted to know whether we had the money to pay the arrears, and my attempt to explain why we withheld rent fell on deaf ears. Accordingly, we went back into the courtroom and waited another half-hour to conference with the judge’s attorney. That likewise proved fruitless. We found him impatient and condescending as well, and after a perfunctory question or two as to why we withheld rent and whether we had the money, he cut us off. His bias for the landlord was obvious and he had no skills to even start the process of reconciliation. He also failed to ask the This amount was rent “for the last 3 months of tenancy” paid in advance at the initial lease signing, but which the landlord agreed to credit for August-October 2008 in the lease renewal. 31 43 attorney whether there was any willingness to compromise on the part of the landlord. Thus we returned to the courtroom and waited another half-hour to see the judge. At the bench, the judge’s attention was focused solely on the attorney for the landlord. The judge addressed his questions and remarks to her, and never asked, “Mr. & Mrs., Rosner, what have you to say?” On the contrary, he chided me at one point for interrupting to inform him the landlord’s attorney was making statements that were patently false. Overall, he made us feel guilty for daring to withhold rent. He too never asked the Petitioner whether there was any room for settling this matter and was about to set a trial date when I managed, finally, to get his attention and make a motion to dismiss the case based on wrong parties, proving I was not served although my name was on the lease.32 He denied it immediately without any explanation or justification. I then made a second motion demanding a Jury Trial, as our right,33 but he stated he was not taking any “oral motions”—despite having already ruled on one. He set a date marked Final for Trial 10 days subsequent, but the Petitioner stated they needed more time, so the judge crossed out the initial date and gave the landlord two additional weeks. Settlement Offer Shortly after our hearing, I sent a settlement proposal to the Attorney of Record of the firm the landlord engaged, detailing the problems with our apartment and the building, why we withheld rent, and how we arrived at the figures for abatements we were asking for. I proposed a dollar amount we would accept if settled before the next hearing. Help Center Meanwhile, seeking information about Court procedures, the following week I went to the Help Center, received a number and waited over an hour, when at 12:00 PM, they announced the room was being closed for lunch and would not open until 1:30. Accordingly, it was past 2:30 until I saw an attorney, who did not seem particularly knowledgeable, having to look up simple questions such as how long I had to amend the answer without leave of the Court. She provided, of course, no advice about how to litigate the case, and could only refer me to Court publications, which I already had. 32 As a matter of law, the case should have been dismissed or, in the worst case, referred for a Traverse Hearing. I was enraged at what I considered this lack of justice. 33 New York Civil Court: Article 1, Section 110(n). 44 Amended Answer Having heard nothing from the landlord or his attorney regarding my settlement proposal, after researching the law, I filed an Amended Answer with more details and specific counterclaims for abatements for violations consistent with previous cases, some of which were decided on appeal.34 I served and filed the answer Friday morning, prior to the subsequent Tuesday hearing. Second Court Appearance After waiting over an hour, the landlord attorney called us out and requested we agree to an adjournment based on her claim that the amended Answer was served the day before—i.e. Monday. I informed her it was served Friday, we were ready for trial, and each delay was extremely stressful, particularly on my wife who has multiple sclerosis. Accordingly, we returned to the courtroom, waited to see a new court attorney, to whom she repeated her claim, but who, to his credit, showed her that it was filed at the Court before noon the Friday previous, and the case was marked “Final for Trial.”35 However, when he questioned how much we desired in abatements—which was slightly greater than the rent demanded—both attorneys insisted we could not ask for more than a 100 percent. Neither could comprehend my explanation that it was less than 20 percent of the total rent we had paid from the beginning of tenancy, as once a petition was served the statue of limitations allowed us to go back up to six years with counterclaims.36 Concerned that the judge might deny an adjournment, the attorney called up her client, and in a new development, when we were called to the bench requested an adjournment because her “client just informed her they were switching firms.” Despite the transparency of this tactic, the judge put off the trial for three more weeks, although he did inform her that the new attorney better be ready to proceed at that time. 34 i.e. 40% abatement for roach infestation: New York LLC v. Anekwe. Supreme Court Appellate Term NY 2 &11 Judicial Dist. (2006). and 45% abatement for bedbugs: Ludlow Properties LLC v. Young. 4: Misc. 3d, 515, N.Y.S. 2d 853 (2004). 35 I pointed out that there was nothing substantially different in the Amended Answer that the Attorney of Record did not know, between the original letter to our landlord and a detailed settlement proposal sent to him after the first hearing. Rather, the amended Answer simply clarified and formalized counterclaims with specific figures. 36 As per CPLR 213(2). i.e. Mandarino v. Travelers Property Casualty Ins. Co., 37 AD 3d 775 2nd Dept. (2007). 45 Third Court Appearance A new attorney, Y, appeared as a “substitute” for X, the “alleged” new Attorney of Record,37 and asked us to adjourn as X did not have a chance to meet with his client. Y claimed that X’s wife was in the hospital for a few days, and that he was previously unavailable. He was even more condescending than the previous attorney—rude even—and when we refused to agree, he stated “Then I have nothing further to say to you.” A conference with the judge’s attorney led nowhere as well, but since Y was unprepared for trial, he called the client for direction. When I agreed to speak to the landlord directly, Y handed me his cell phone, but couldn’t resist telling him, “see if he is more rational than before.” My conservation with the landlord led nowhere, so we returned to the courtroom. At the bench, the judge’s attention was totally focused on Y whom he obviously knew. Y repeated his request, using the first name of X, the “purported” new attorney. (i.e. “John’s wife was in the hospital for a few days.”) Once again, the judge treated my wife and I as if we did not exist, and I had to interrupt to state that we should not be penalized for the incompetence of the landlord’s attorneys; this case was not “Agent Orange” or “Roe v. Wade,” but a typical landlord/tenant case which did not require much in a meeting with the client; the litigation was causing my wife tremendous anxiety; a third delay was unconscionable. Besides, as a matter of law, in reply to their petition our counterclaims stood on their own as if an HP action was initiated,38 and at the very least a trial should proceed upon that basis. Nonetheless, the judge not only ruled for an adjournment, but far, far worse, stated twice, “Well, that was the road you decided to take,” prejudging our guilt and chastising us for withholding rent. (I was so angry I looked at him with daggers, but he averted my gaze.) He thus put off the trial for another 5 weeks, despite the unproven assertions by Y, the fact the case had already been marked Final for Trial for the second time, and the judge’s own admonition during the previous hearing that the Petitioner better be ready. Nor did the judge even question whether Y had any legal standing, since no Notice of Attorney Substitution was served on us or So Ordered. (As a result of this decision and the judge’s last remark, my wife composed the poem on page 48, “Losing my Faith.”) 37 A copy—not the original—of a Notice to that effect was in the file, but it was not signed by a judge nor served on us, and in fact, the previous firm was still the Attorney of Record three days subsequent, as told to me by the Court cashier. 38 i.e. K. C. R. & O Management Corp. v. Ahmad. Appellate Term, 2nd and 11th Judicial Districts NYLJ, 31:6, July 13, 2006. 46 Fourth Court Appearance A snowstorm plagued the city during our next court date, but as the court’s answering message stated they would be open—but no defaults taken for failing to appear—my wife and I decided to go, since if the attorney for the Petitioner showed, we could have a trial and hopefully bring this source of great anxiety to a conclusion—one way or another. The attorney for the Petitioner did in fact appear, but it was Y, the same attorney who in the previous hearing asked for an adjournment on the basis that X had not yet met with his client. (An officer of the landlord was there as well—but his offer to reimburse us the $140.00 for the private exterminator we naturally turned down.) However, not enough Court personnel came in to have trials, and the case was once again adjourned. (As that decision was made after we both appeared and Y could not have known about it a priori, if he was to conduct the trial, then his previous request for an adjournment was a sham, whereas, if he was not prepared to conduct the trial, he had to be assured the risk of a default judgment was virtually nil, given the bias of the judge.) Settlement Conference at Landlord’s Office A few days later, I received a call from the landlord asking me to come to his office to discuss a settlement. For reasons I can only guess at, they now seemed anxious to settle, and, among other concessions, they agreed to take off $5,000.00 from the rent we owed. (The rent was never in dispute and by then we owed $12,600.00.) I contacted their new attorney, X, directly, who fortunately was honorable, and we worked out a stipulation agreeable to both sides. Even then we were fortunate to avoid one last obstacle. The slip of paper given to me during the previous hearing had us returning to court two days subsequent to the official date entered into the system. Had X’s legal aide, in emailing the stipulation, not alluded to that date, we would have not appeared, been defaulted, and wasted more of the Court’s time with an Order to Show Cause.to reactivate the case. 47 Fifth & Last Court Appearance By this date a new Resolution judge was presiding, and one immediately sensed the difference in the Court atmosphere. The judge was neutral, fair, related to both litigants, and her questions probed the issues so she would be in a position to effect a compromise. Her attorney was equally competent—and went out of her way to help us—reviewing and having the judge sign the stipulation without us having to appear before her—given that I had written up the majority of provisions, she agreed it was unnecessary for the judge to review the stipulation with my wife and myself. 48 LOSING MY FAITH Audrey Rosner December, 2010 A lunar eclipse...a rare occurrence indeed... While on earth—another day at court Judging between those in need. For you are the judge And last time promised, “Today it goes to trial.” Yet a third adjournment is granted, With the trace of a smile? After all, lawyer #3 said B’s wife was ill. He had no chance to meet with the client His duties he could not fulfill. But the use of first names, makes me nervous still. Three adjournments for the party with dough, While the blood in my veins stops its flow. Yes, that pivotal moment in time That forever changed my faith in mankind. A fall from grace, in time and place. I stood speechless in a courtroom of lies. I looked at my husband And could see pain in his eyes— For we are children of truth. Yet, one more surprise. "This is the path you chose," you said. Our guilt—-withholding our rent— You already presupposed. But know that justice—or lack of—dispersed Will reverberate throughout the universe. Down the halls of Justice I took flight, Stunned as a deer caught in the light. Descending the gray elevators, I began my fall... Floor by floor. You took away something that will be hard to get back. My faith in man. December, 2010 A lunar eclipse...a rare occurrence indeed. While on earth—another day at court Judging between those in need. Tonight the moon goes dark under the shadow of the earth. While injustice and hypocrisy have had a rebirth. 49 Appendix A NEW LANDLORD/TENANT CASES 2009-2010 (Last 12 Months, as Reported) COURT TERM ———10-13 YR -— 09 BRONX ——-—25645 BKLYN ———— 26501 MANHAT —-——— 20416 QUEENS -———— 15709 1-3 10 18453 15879 13749 9408 1117 936 59542 4-6 10 16651 14774 11437 8905 1037 713 53517 7-9 10 12983 ———— 73732 10930 ———-— 68084 7957 ———53559 6212 ———40234 838 -——4948 736 -——4134 39656 ———244691 SUBTOTALS: STATEN ISLAND HARLEM ————- -—-——1956 1749 TOTAL -——91976 SOURCE: Combined from New York State Unified Court System Website <www.courts.state.ny.us/courts/nyc/housing/statistics.shtml> 50 Appendix B NEW YORK CITY COUNCIL CONSTITUENT REQUESTS: 2009 Constituent requests and concerns are received via phone, fax, e-mail, in person and via web forms located on the Council’s website. TOPIC Aging Civil Service and Labor Consumer Complaints Cultural Affairs Economy/Jobs Education Environment Finance General Welfare Governmental Operations Health Housing and Buildings Immigration Land Use and Zoning Parks Public Safety Quality of Life Sanitation Transportation Utilities PERCENTAGE 4% 1% 3% 1% 3% 9% 3% 8% 4% 2% 3% 23% 2% 4% 5% 4% 4% 2% 13% 1% Source: <http://council.nyc.gov/html/stat/Data/citywide_2009.pdf > 51 Appendix C RECORD OF APPEARANCE SUMMARY - PROTOTYPE Civil Court of the City of New York Resolution Hearing OFFICIAL RECORD OF APPEARANCE KINGS County Housing Court Room: 333 Petitioner Cain & Able Associates JANUARY 30, 2011 Judge: A. B. JOHNSON Respondent Baker against FOR PETITIONER: Proctor and Gamble Index #: 12345/2011 Charles Williams: OF COUNSEL FOR RESPONDENT: Allen Baker Pro Se MOTIONS: 1. _______________________________________ BY: __ PET __ RESP • Grnt • Dnd • Rsv REASON: __________________________________________________________ 2. ______________________________________ BY: __ PET __ RESP • Grnt • Dnd • Rsv REASON: __________________________________________________________ 3. ______________________________________ BY: __ PET __ RESP • Grnt • Dnd • Rsv REASON: __________________________________________________________ CASE DISPOSITION: ______ Adjourned to: _______________ at _______ AM PM ___X__ Stipulation Agreed To ______ Trial ______ Default: For: ______________________ ______ Other __________________________________________ _______________ at _______ AM PM ___________________________________________ 52 Appendix D CURRENT ORAL ANSWER FORM CIVIL COURT OF THE CITY OF NEW YORK County of ________________________ _____________Housing Part__________________ Index No.:_________________ LANDLORD/TENANT ANSWER IN PERSON Petitioner(s), -against- Name:_________________________________ Respondent(s) Address:_______________________________ ________________________________________ ____________________ Apt._______ •Respondent/•Person claiming possession has appeared and has orally answered the Petition as follows: Answer SERVICE 1. __•___ The Respondent did not receive a copy of the Notice of Petition and Petition. 2. __•___ The Respondent received the Notice of Petition and Petition, but service was not correct as required by law. PARTIES 3. __•___ The Respondent is indicated improperly, by the wrong name, or is not indicated on the Notice of Petition and Petition. 4. __•___ The Petitioner is not the Landlord or Owner of the building, or a proper party. RENT 5. __•___ No rent demand or proper rent demand, either oral or written, was made before this proceeding. 6. __•___ The Respondent tried to pay the rent, but the Petitioner refused to accept it. 7. __•___ The monthly rent being requested is not the legal rent or the amount on the current lease. 8. __•___ The Petitioner owes money to the Respondent because of a rent overcharge. 9. __•___ The rent, or a portion of the rent, has already been paid to the Petitioner. APARTMENT 10. __•___ There are conditions in the apartment which need to be repaired and/or services which the Petitioner has not provided. 11. __•___ Public Assistance shelter allowance has stopped because of housing code violations in the apartment or the building. 12. __•__ The apartment is an illegal apartment. OTHER 13. __•___ Laches. 14. _•__ General Denial. 15. __•___ Respondent/Person claiming possession is in the military service or is a dependent of someone in the military service. 16. __•___ Other Answer ___________________________________________________________________________________ ________________________ ________________________ Dated Clerk’s Initials =================================================================================== NOTICE OF SCHEDULED APPEARANCE This case is scheduled to appear on the calendar as follows: DATE:___________________ TIME: __________________ PART:__________________ ROOM:_____________ YOU SHOULD ARRIVE AT THE COURTHOUSE AT LEAST ONE HALF HOUR BEFORE THE ABOVE SCHEDULED TIME, TO ALLOW TIME TO BE PROCESSED THROUGH THE METAL DETECTORS. IF A SETTLEMENT IS NOT REACHED ON THE ABOVE SCHEDULED DATE THE CASE MAY BE SENT TO A TRIAL READY PART FOR A TRIAL. IF YOU WILL NOT BE READY FOR TRIAL ON THE ABOVE SCHEDULED DATE, YOU MUST ASK THE COURT FOR ANOTHER TRIAL DATE. IF THE COURT DOES NOT ACCEPT YOUR REASON FOR NOT BEING READY FOR TRIAL, AND YOUR REQUEST FOR ANOTHER TRIAL DATE IS DENIED, YOU MAY BE REQUIRED TO PROCEED TO TRIAL IMMEDIATELY. THE CLERK CANNOT CHANGE THE SCHEDULED DATE OR TIME. YOU MUST APPEAR AND BRING THIS FORM WITH YOU. For assistance visit a Help Center in the courthouse or the court’s website: NYCourts.Gov/NYCHousing. 53 Appendix E1 PROPOSED NON-PAYMENT ANSWER FORM - PART I CIVIL COURT OF THE CITY OF NEW YORK - HOUSING PART County of ________________________ Index No.:_________________ Petitioner(s): ________________________________ LANDLORD/TENANT NON-PAYMENT ANSWER -againstRespondent(s): ______________________________ Address:_____________________________ __________________ Apt._______ •Respondent•Person claiming possession: has appeared and answered the Petition as follows: ============================================================================================ Fill in as many boxes as necessary with a 3 digit Code. See Instruction Booklet. 1. SERVICE | | | | | | | | | | | | | | | | | | | | | | | | 2. PARTIES | | | | | | | | | | | | | | | | | | | | | | | | 3. RENT | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 4. APARTMENT: REPAIRS & SERVICES | | | | | | | | 5. BUILDING 6. MISCELLANEOUS | | | | | | | | | | | | | | | | | | | | | | | | 7. OTHER: ____________________________ ____________________________ ____________________________ ____________________________ 8. ABATEMENT REQUESTED (Optional) _______________________________________ Signed | | | | | | . 00 ____________________ Dated ________________________ Clerk’s Initials 54 Appendix E2 PROPOSED NON-PAYMENT ANSWER FORM - PART II INSTRUCTIONS PLEASE READ CAREFULLY BEFORE YOU SEE THE COURT CLERK. ASK CLERK FOR HELP IF YOU DO NOT UNDERSTAND ANY PART. 1. YOU WILL BE SCHEDULED FOR A RESOLUTION HEARING TO TRY TO COME TO AN AGREEMENT WITH YOUR LANDLORD UNDER COURT SUPERVISON. THIS IS NOT A TRIAL! 2 YOU SHOULD ARRIVE AT THE COURTHOUSE AT LEAST ONE HALF HOUR BEFORE THE SCHEDULED TIME. 3 YOU SHOULD BRING ANY DOCUMENTS, OR PICTURES THAT WILL HELP YOUR CASE. 4. IF YOU HAVE WITHHELD RENT BECAUSE THE LANDLORD HAS NOT REPAIRED YOUR APARTMENT OR NOT DELIVERED SERVICES YOU ARE ENTITLED TO, SUCH AS HEAT AND HOT WATER, YOU SHOULD COME PREPARED TO TELL THE COURT HOW MUCH MONEY THE LANDLORD SHOULD DEDUCT FROM WHAT YOU OWE, FOR YOU TO AGREE TO PAY THE DIFFERENCE AND BEGIN PAYING RENT AGAIN. 5. IF THE LANDLORD IS ASKING FOR RENT THAT YOU BELIEVE YOU HAVE ALREADY PAID, YOU SHOULD COME TO COURT WITH PROOF OF PAYMENT SUCH AS CANCELED CHECKS, RECEIPTS, OR BANK OR CREDIT CARD STATEMENTS 6. IF A SETTLEMENT IS NOT REACHED, THE CASE WILL BE RE-SCHEDULED FOR A TRIAL BETWEEN 3-4 WEEKS FROM THE DATE OF THE RESOLUTION HEARING SO YOU HAVE ENOUGH TIME TO PREPARE YOUR CASE. THE DATE/TIME.OF THE RESOLUTION HEARING IS SCHEDULED BY A COMPUTER. THE CLERK CANNOT CHANGE THE SCHEDULED DATE OR TIME. YOU MUST APPEAR AND BRING PAGE 1 OF THIS FORM WITH YOU. For assistance visit the Help Center in the courthouse or the court’s website: NYCourts.Gov/NYC Housing. ============================================================================ NOTICE OF SCHEDULED RESOLUTION HEARING This case is scheduled to appear on the calendar as follows: DATE:___________________ TIME: __________________ PART:__________________ ROOM:_____________ 55 Appendix E3 INSTRUCTIONS FOR THE NON-PAYMENT ANSWER FORM INSTRUCTION BOOKLET The following list contains the most common reasons why rent was not paid. Defenses are organized under 6 major categories, with a 3 digit code to represent various situations. You may use as many codes as are applicable in your case. If you have withheld rent for reasons not listed, you may write them in next to Line 7. Please do not use defenses you know are not true! You will waste the Court’s time and if the landlord can prove otherwise, you will lose credibility. If the case goes to trial, the judge often has to decide who is telling the truth—you or the landlord. If you are caught in a lie about one issue, you are more likely to get a poor result even if your other reasons are valid. USE A PENCIL WHEN FILLING OUT THE FORM. DO NOT SIGN THE FORM UNTIL YOU SEE THE CLERK CODE DESCRIPTION Line 1: Service 101 The Respondent did not receive a copy of the 5 Day Notice of Petition or Notice of Petition. 102 The Respondent received Notice of Petition, but service was not correct as required by law. Line 2: Parties 201 The Petition does not list you as a Respondent. 202 The Petition has you as Respondent by the wrong name. 210 The Petitioner is not the Landlord or the Owner of the building. 211 The Apartment is a sublease and the Petitioner is not the primary tenant. 212 The Respondent has no agreement—oral or written—with the Petitioner (known as Privity). Line 3: Rent 301 No rent demand or proper rent demand, either oral or written, was made before this proceeding. 302 The Respondent tried to pay the rent, but the Petitioner refused to accept it. 311 The monthly rent being requested is not the amount on the current lease. 312 The monthly rent being requested is not the legal rent in a Rent-Controlled apartment. 313 The monthly rent being requested is not the legal rent in a Rent-Stabilized apartment. 321 The rent, or a portion of the rent, has been already paid. 322 The Petitioner owes money to the Respondent because of a rent overcharge. 323 The Respondent is Disabled or a Senior Citizen entitled to a discount from the rent, but the landlord is charging the full amount. Page 1 56 Appendix E3 (cont) INSTRUCTION BOOKLET CODE DESCRIPTION Line 4: Apartment Repairs and Services 40_ There are conditions in the apartment which need repair, but the landlord has not done so. Use the following as the 3rd number: (i.e. 401 for unrepaired hole in ceiling) 1-Wall or Ceiling 2-Electrical 3-Plumbing 4-Major Appliances 5-Window 6-Lead Paint or Molding 7-Window Guards or Smoke Detector 9-Other 41_ There are conditions in the apartment which need services which the landlord has not provided. Use the following as the 3rd number: 1-Heat/Hot Water 2-Roach Infestation 3-Bedbug Infestation 4-Mice 5-Painting 9-Other Line 5: Building 510 The Building is not maintained properly. (i.e. The roof leaks, fire escapes are rusty and have not been painted for over 3 years, night lighting is inadequate, the boiler is often broken, etc.) 511 The Building is filthy, the floors are not washed, litter outside the building is not removed, trash is not picked up, etc. 512 The inside of the Building is unsightly. (The walls and/or floor have chips, holes, needs painting, tiles are broken or missing, molding is cracked, etc.). 513 The Building has vermin (Bedbugs, Roaches, Mice, Rats). 514 The Elevator is not working properly or has been out of service for over 48 hours. 515 The Landlord does not give enough heat or hot water. 520 The Building has violations still open with the Department of Housing Preservation & Development (HPD). 521 The Building has violations still open with the Department of Buildings (DOB). 530 Public Assistance shelter allowance has stopped because of housing code violations in the apartment or in the building. 540 The apartment is a illegal. It does not have a valid Certificate of Occupancy from the DOB. Page 2 57 Appendix E3 (cont) INSTRUCTION BOOKLET CODE DESCRIPTION Line 6: Miscellaneous 611 The Respondent is being harassed by the landlord. 612 The Respondent is being harassed by other tenants. 613 There are drugs sold in the building that landlord ignores. 621 The Landlord has entered the Respondent’s apartment and removed furniture or other property without permission. 622 631 632 The Respondent has damages to personal property caused by conditions in the building or apartment. The landlord has not placed the Respondent’s Security Deposit in Trust, as required by law. The landlord refuses to return that portion of the Respondent’s Security Deposit over and above the maximum allowed by law (one month’s rent, in regulated apartments). 661 Due or illness or economic hardship, the Respondent has lost his/her job. 671 The Respondent/Person claiming possession is in the military service or is a dependent of someone in the military service. 681 The Landlord’s delay (i.e. over 4 months) in bringing the Respondent to Court has caused him/her significant injury and prejudice (known as Laches). Line 7: Other If you have other defenses that are not listed above, place them in the space provided. Line 8: Abatement (deduction from rent) Requested If you have withheld rent because of problems needing repairs or services, whether in the building or your apartment, you may optionally place the amount you request the Court to deduct from the rent owed, for you to agree to settle the case and pay the balance. Note: (1) You will have the right to change this amount at any time. (2) The landlord is still responsible for making the repairs or providing you with the services you are entitled to. Page 3 58 Appendix F PROPOSED STIPULATION DATA ENTRY FORM Stipulation Data Entry Form COURT: KINGS COUNTY DATE: 03/10/2001 Judge Index # Claimed Rent (Initials) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Waived Amount (Use Whole Numbers) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| /| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 59 Appendix G LEGISLATIVE BILL #A2996-200939 Selected Excerpts January 22, 2009 (Introduced by M. of A. ROBINSON — Multi-Sponsored by — M. of A. CHRISTENSEN, GREENE, MAYERSOHN, TOWNS) AN ACT to amend the Real Property Law, the Multiple Dwelling Law, the Multiple Residence Law, the Real Property Actions and Proceedings Law and the General Obligations Law, in relation to requiring all residential leases to disclose tenants' rights Section 1. The Real Property Law is amended by adding a new section, 235-g, to read as follows: 235-g. Standard Lease Clause. 1. Every written residential lease shall contain the following clauses: a. "Warranty of Habitability". the landlord promises that the apartment and building are fit to live in and not dangerous to the life, health or safety of the occupants. unless the apartment or building becomes unfit to live in due to the misconduct of the tenant or the tenant's family or guests, the landlord will be held responsible if this promise is broken, even if it is not his fault. Conditions which would violate this promise include, but are not limited to: insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, and inadequate sanitation facilities. If the promise is violated, the tenant may withhold from rent the loss in the value of the apartment due to the violation. b. "Willful Violation of Lease". if the landlord or his employee or agent intentionally violates a provision of this lease or intentionally interferes with the tenant's quiet enjoyment of the apartment, the landlord is guilty of a criminal offense. Section 2. The Multiple Dwelling Law is amended by adding a new section 85 to read as follows: 85. Standard Lease Clause. 2. Every written lease for an apartment for which section seventy-eight of this title applies shall contain the following clause: Landlord shall keep every part of the building in good repair. however, the tenant shall be responsible for damage caused by the misconduct or negligence of the tenant, tenant's family or guests. 3. Every written lease for an apartment for which section eighty of this title applies shall contain the following clause: Landlord shall keep every common area in the building, and the lot in which it is situated, clean and free from vermin, garbage, dirt or other matter dangerous to life or health. 4. Every written lease for an apartment for which section seventy-nine of this title applies shall contain the following clause: Landlord must provide heat sufficient to maintain the minimum temperatures of ___ degrees Fahrenheit during the hours of __ to ___ and ___ degrees Fahrenheit during the hours of __ to __ between the dates of __ to __, with the landlord filling in the lease with the appropriate temperature, hours, and dates required by local law, ordinance, rule, or regulation or by the local public health officer. 39 For the full bill, see <http://open.nysenate.gov/legislative/bill/A2996> 60 Appendix G (continued) Section 3. The multiple residence law is amended by adding a new section 305-b to read as follows: 305-b. Standard lease clauses. 1. Every written lease for an apartment for which section one hundred seventy-three of this chapter applies shall contain the following clause: Landlord must provide heat sufficient to maintain the minimum temperatures of __ degrees Fahrenheit, for the hours of ___ to ___ and ___ degrees Fahrenheit during the hours of ___ to ___ between the date of ___ to ___, with the landlord filling in the lease with the appropriate temperature, hours, and dates required by local law, ordinance, rule, or regulation or by the local public health officer. 2. Every written lease for an apartment for which section one hundred seventy-four of this chapter applies shall contain the following clause: Landlord shall keep every part of the building and the lot on which it is situated in good repair, clean and free from vermin, rodents, dirt, filth, garbage or other matter dangerous to life or health. however, the tenant shall also be responsible for any damage caused by the misconduct or negligence of the tenant, tenant's family or guests. 3. Every written lease for an apartment for which section three hundred five-a of this article applies shall contain the following clause: A rent-impairing violation is defined in New York Codes, Rules and Regulations, Title 9, Part 1300. It includes, but is not limited to: (a) Failure to keep premises in good repair, clean and free from vermin and rodents, (b) failure to provide an adequate supply of heat, and (c) lack of artificial lights in every public hall and stair. If such a violation exists, the tenant should report it to the division of housing and community renewal. if within six months after the division cites the building for the violation the landlord does not correct the violation or file a plan to correct it, the landlord may not recover rent from any tenant whose apartment contains the violation. If the violation is in an area common to all tenants, no rent may be collected from any tenant." If the landlord sues to recover the rent withheld or to evict for non-payment of rent, the tenant must deposit the rent sought with the clerk of the court where the landlord's suit was brought. after depositing the rent, the tenant may not be evicted for non-payment of rent." 61 Appendix H PROPOSED RESOLUTION HEARING SIGN-IN SHEET APRIL 1, 2011- AM ROOM 510 KINGS COUNTY HOUSING COURT DOCKET JUDGE: L. B. BRANDEIS T I M E S CHECK-IN PETITIONER ________ ABDON ________ ABIJAM ________ ABIMELECH ________ ABRAM [ABRAHAM] ________ ADAM ________ AHAB ________ AHAZ ________ AHAZIAH ________ AMON ________ AMRAM ________ ARPACHSAD ________ ASA ________ AZARIAH ________ BAASA ________ DAVID ________ EBER v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | v. | | CHECK-IN RESPONDENT INDEX NO. ________ HILLEL ________ REHOBAM ________ GIDEON ________ TERAH ________ EVE ________ OMRI ________ JOTHAM ________ JEHORAM ________ MANASSEH ________ LEVI ________ SHEM ________ ABIJAM ________ AMAZIAH ________ AHUAH ________ JESSE ________ SHELAH 000001/10 | | 000002/10 | | 000003/10 | | 000004/10 | | 000005/10 | | 000006/10 | | 000007/10 | | 000008/10 | | 000009/10 | | 000010/10 | | 000011/10 | | 000012/10 | | 000013/10 | | 000014/10 | | 000015/10 | | 000016/10 | | CASE TYPE CT ATTY NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ NONPY ______ _______ HOLDV ______ _______ NONPY ______ _______ NONPY ______ _______ HLDOV ______ _______ HLDOV ______ _______ NONPY ______ _______ JUDGE 62 Appendix I The Story of Our Life Audrey. Rosner When someone dies tragically, all that seems important reveals itself, all our endeavors become secondary, and for a brief moment we stop and think about ourselves, our own life story. If this tragedy was the conclusion my life, what would they say at my funeral? And what really would be important? Was I a great scientist, teacher, philosopher, novelist, CEO? Or was I a good wife and friend; kind, compassionate, honest, striving to always better myself? Yesterday, I attended a funeral. I felt great sadness and regret. My neighbor was struck by a car and killed. At the grave-site, according to Jewish tradition, there is a path that friends and neighbors form to comfort the mourners as they conclude the burial. In this case, the mourners, a wife and a daughter, began to walk down the path. Yet out of the 100 or so attendees, only 2 reached out to comfort them in the passing of their husband and father. We all stood, waiting for each other, wondering, not knowing these mourners well enough to hold their hand, give them a hug, reach out, express our love. We all stood, paralyzed with fear. It became apparent that many of the people there knew the wife as an acquaintance—the daughter not at all as she was not from the area. Did they care just enough to attend as almost a token appearance, I wondered? When I arrived home, I had deep regret within myself, for not reaching out, and was discouraged with the nature of people. It was clear to me that except for those two individuals, we were all cowards. What would it have taken for us to reach out to a stranger? What held us back from giving? What does it take to overcome fear? My husband and I have recently began asking one another what the high-point and low-point of our day is. This day, it was clear the low-point was my failure to be courageous and comfort a neighbor. After I told him, My husband—someone who always reaches beyond the ordinary and does not stop when it seems that the story is over—pointed out I could rectify this failure and encouraged me to go to the home of the bereaved, apologize for my inaction, and hug them right then and there. I knew in my heart, he, my inspiration to go beyond my ordinary limitations, was correct. I had to do this. I said, “OK “ and we proceeded to their apartment. On the way, a walk of less than 25 yards, I told him, “I was scared to death.” Yet I understood that fear is a cowardly excuse to avoid what we must do. 63 I knocked on the door as my heart raced out of control. When I entered, a few people were in the apartment and there was not much privacy. I signaled to the daughter to ask if I could speak with her alone. This was our first personal meeting and I did not know her. I told her, as tears fell down my face, “I am sorry that I was not brave enough to comfort you and that you walked that path alone. I loved your father and I am so sorry for your grief and pain.” She cried and we held each other, total strangers. She said she understood; that this happened because nobody knew her. Yet somehow I still fill this was a terrible excuse. When we arrived back home, I had more clarity. I realized that on the other-side of the low-point, the high-point of my day was hiding. On the other-side of fear, is the incredible feeling of joy; of connecting with a stranger and giving her comfort at the most important time of her life, the death of a parent. It felt awesome to become aware that inside the seemingly negative, there is a tremendous opportunity for love, gratefulness, joy. What is a life? Isn’t it just a series of days, one after another. But if that is the case, then what we do with each day is critical. Yet how many times do we wake up and think to ourselves, what will I do today that is critical to summary of my life? What will I say, what will I read, what will I allocate my time to? If we really understood how critical each day was; that what we pick up to read or watch on TV would not be done lightly. Is it really necessary to watch American Idol? Would people be taking about that at our funeral? If we had this keen awareness, we would be very careful about how we spend our day, and, for that matter, each hour. Spend is a verb, and an appropriate one at that. We each have a limit on the Credit/Debit Cards of our lives. Isn't it time to wake up and not spend them on trivialities? Maybe during our day, we should stop every so often and ask ourselves, how can I make it better? What could I have done that was brave? Did I miss the opportunity to comfort someone because of fear? Did I miss an opportunity to help someone because of laziness? Am I ignoring how stressed my employees are because I'm too busy telling the world how successful I am? Did I rule against a party because I knew the attorney for the defendant? Have I missed an opportunity to add to the story of my life? Let Today begin the story of our life.
