Housing Court: Confusion Rules
by Kenny Schaeffer

New rules governing Housing Court eviction cases that went into effect Jan. 5 have done more to increase confusion than efficiency, rushing the majority of tenants without lawyers through the system more quickly, while causing additional delays in other cases.

Meanwhile, a decision was rendered on March 30 in Lang v. Pataki, the constitutional challenge to the 1997 mandatory rent-deposit eviction law. State Supreme Court Justice Edward Lehner, while concluding that the law “may well be unconstitutional in its application,” refused to issue an injunction against it, arguing that individual tenants facing eviction could raise objections to the law on a case by case basis.

“This ignores the fact that the overwhelming majority of tenants faced with eviction in Housing Court have no attorneys and no legal training,” observed Angelita Anderson, director of the City-Wide Task Force on Housing Court.

The decision listed several constitutional defects in the law, including a provision which prohibts judges to consider whether there are good reasons to prevent a scheduled eviction even though the tenant is unable to deposit the disputed money into court, and another which removes judges’ control over the scheduling of cases.

Judith Goldiner, one of the Legal Aid attorneys working on the case, said “We are pleased with the decision. Not only does it find part of the law facially unconstitutional, but more importantly it restores to Housing Court judges the power to stay evictions for good cause, which had been removed by the statute.”

Enormous Changes at the Last Minute Last fall, as the rent-deposit law was scheduled to go into effect, New York State’s chief judge, Judith Kaye, announced a drastic reshuffling of Housing Court, which was implemented without prior notice or public input. Judge Kaye is generally regarded as well intentioned, and she has announced a plan to reorganize the state’s entire judicial system. However, the Housing Court plan did not address the system’s greatest built-in defect: the fact that most eviction cases pit low-income, minority tenants with no legal training and no lawyers against landlord attorneys under circumstances which virtually guarantee that their issues will not be heard.

Housing Court was created in 1972 with a promise that it would preserve housing by enforcing housing codes and resolving rent and repair disputes quickly and fairly. It has failed to do this. “Housing court has been an inefficient eviction mill,” declares Met Council executive director Jenny Laurie. “Making it a more efficient eviction mill would not make this a better world.”

Under the new procedures, cases no longer start out in “Part 18,” the huge calendar part where both nonpayment cases and holdover cases formerly began. Instead, cases are initially assigned to a “Resolution Part” presided over by a Housing Court judge. If the case is not settled, it is then referred to “Part X,” where a clerk known as “the expediter” sends the case to a trial judge, who will hear the case and either dismiss it or, more often, render a final judgment.

Judge Kaye’s initiative added some new resources, including additional court attorneys, called “law assistants,” who are supposed to supervise the negotiations in the resolution parts. However, because of the large caseload, particularly in Manhattan, cases continue to be negotiated in the hallways with the tenant having to deal directly with the landlord’s attorney without a law assistant present. Also, observes one attorney, “many of the resolution judges have been seen pressuring unrepresented tenants to settle cases by reciting the dire consequences of not settling and facing an immediate eviction order, without making sure that the tenant’s legitimate claims are incorporated into the settlement, such as rent-abatement and overcharge claims.”

No Deposit, No Return In the meantime, landlords have rarely invoked the mandatory rent-deposit law, even though they fought hard to get it slipped into last June’s deal between Governor Pataki, Assembly Speaker Sheldon Silver, and State Senate Majority Leader Joseph Bruno to weaken many rent and eviction protections.

Though the rent-deposit law could double the number of evictions by preventing judges from even considering a tenant’s claims unless she has deposited the amount in dispute, few landlords have actually used it yet. New York City Civil Court administrative judge Fern Fisher-Brandveen told a bar association panel on March 25 that only 100 requests for rent deposits have been made since the law went into effect last Oct. 20. The Rent Stabilization Association, the city’s main landlord group, told all of its members not to invoke the law until the anticipated legal challenge was decided.

Now that Justice Lehner’s decision in Lang v Pataki has highlighted the defects in the law while refusing to issue an injunction against its implementation, the battleground will shift to Housing Court.