HOUSING COURT: THE STRUGGLE CONTINUES
Decision on Eviction Law Leaves Uncertain Results
By Kenny Schaeffer

On Nov. 6, state judge Edward Lehner ruled that the state's 1997 weakening of eviction protections was not absolutely unconstitutional, but may be unconstitutional as applied in particular cases.

Tenant groups had filed a lawsuit challenging the constitutionality of the 1997 "rent deposit" law, several amendments to the state's eviction law that appear to limit the power of Housing Court judges to stop scheduled evictions or adjourn cases when tenants are sued for alleged nonpayment of rent, unless the tenants deposit the amount of money in dispute into court.

Justice Lehner based his ruling in part on concessions by attorneys from the state attorney general's office and the Rent Stabilization Association (RSA) that Housing Court judges still have the power to cancel scheduled evictions, or grant adjournments of trials for "good cause"-which may include illness or delay in obtaining benefits.

At issue are two changes in the statute which governs eviction cases, known as the Real Property Actions and Proceedings Law (RPAPL) which were demanded by the Republicans in Albany in 1997 and accepted by the Democratic Assembly as part of the price of renewing the rent-stabilization law. One provision, RPAPL 747-a, appears to deprive Housing Court judges of the power to stop a scheduled eviction by signing an "Order to Show Cause" which directs the city marshal not to carry out the eviction until the court has had an opportunity to hold a hearing on whether there is a valid reason to stop it. Judges are presented with more than 100,000 Orders to Show Cause each year. They enable tens of thousands of people to avoid eviction by showing that they don't owe some or all of the rent their landlord claims, and by quickly coming up with what they do owe. This law would prevent judges from issuing such orders unless the tenant already has the entire amount of rent claimed.

The other provision, RPAPL 745-a, states that a judge cannot adjourn the trial of an eviction case that has already been adjourned once before at the tenant's request or is more than 30 days old, unless the tenant can deposit into court all of the rent which has become due since the case began. Tenants frequently need time to get an attorney, obtain documents to prove their case, or simply to familiarize themselves with housing law.

Terrorist Attack?

The provisions have the harshest impact on families whose income has been interrupted due to loss of employment, termination of unemployment insurance, or wrongful denial or delay in receiving public assistance. (Wrongful delay and denial of public assistance to needy families has become a widespread and semi-intentional abuse under the Giuliani regime. The mayor has described this as "the cutting edge of welfare reform.")

Sections 745(2) and 747-a took effect on October 20, 1997. The lawsuit, called Lang v. Pataki, was brought soon afterwards by Legal Services and Legal Aid attorneys on behalf of Met Council, the City-Wide Task Force on Housing Court, and other housing advocates. For many months, landlords rarely even asked judges to apply the new law. The RSA warned its members that the law could be overturned by the courts or legislature if its consequences were seen.

In an earlier preliminary ruling, Justice Lehner had indicated that some provisions of the 1997 law appear to violate the constitutional separation of legislative and judicial branches of the government by dictating how judges must conduct cases, as well as interfering with the due-process rights of tenants not to be evicted without a chance to have their claims heard.

In declining to strike the entire statute as unconstitutional, Justice Lehner relied on an agreement between state Attorney General Dennis Vacco's office and the RSA that under a different section of the law, RPAPL 749(3), the court still has a "fail safe" ability to stop an eviction for good cause shown without a deposit of the disputed money. Justice Lehner also found that Housing Court judges will have the ability to determine that the provisions of 745(2) and 747-a are unconstitutional as applied to the facts of a particular case, and to disregard them.

"An Important Victory"

For that reason, the pro-tenant attorneys on the case described the decision as "an important victory." Justice Lehner's decision provides room for Housing Court judges to continue to assert their legal authority to adjourn cases and stop evictions when they believe the interests of justice so require, exactly as they did before the 1997 law. However, it remains to be seen how often Housing Court judges will actually do so.

Moreover, the position of tenants in Housing Court even without these provisions is pretty dismal. Nine-tenths of tenants facing eviction don't have legal representation, while 98% of landlords do. There were 25,000 evictions in 1997.

A recent reorganization of Housing Court by state Chief Judge Judith Kaye has speeded up the eviction process by eliminating the "calendar part," where cases used to start, and immediately placing tenants before "resolution parts" where most unrepresented tenants are pressured to sign unfavorable agreements the first day they go to court, before most of them have a chance to learn that they have the right to raise defenses such as hazardous conditions in their apartment.

This sorry state of affairs was confirmed in a study by the Fund for Modern Courts reported in the New York Law Journal on Nov. 4, which also criticized the "rude and unhelpful conduct" of court clerks and court officers. Many advocates believe that the number of evictions in 1998 may rise to 30,000 families, due to a combination of this Housing Court speedup, the Giuliani welfare cuts, and the 1997 rent law's weakening of eviction protections, restrictions on challenges to rent overcharges, and huge vacancy increases that encourage landlords to displace tenants.

"Left-Wing" Housing Judges?

Yet the real-estate industry continues to push to make Housing Court even more of a rubber stamp for evictions. Mayor Giuliani has been pressing for the right to appoint Housing Court judges, claiming that the current judges, appointed by the Administrative Judge, are "left-wing" and asserting that most of them are former tenant attorneys, a blatant lie. (Far more housing judges are former government lawyers, landlord lawyers or judges' law assistants. What actually motivates landlords' hostility to Housing Court is that New York State has many strong rent and eviction laws designed to keep tenants in their homes when possible.)

That campaign hit a new low on Dec. 3, when the state legislature enacted substantial pay raises for itself and for every judge in the state except New York City Housing Court judges. This unequal treatment was ostensibly imposed because Housing Court judges are only hearing officers, not real judges, but according to legislative and court officials cited in the Dec. 4 Law Journal, the move was actually taken by State Senate leader Joe Bruno to reflect the real-estate lobby's desire to pressure housing judges to issue more favorable decisions.

Justice Lehner's decision leaves the future interpretation of 747-a and 747(2) to be played out on a case-by-case basis, where most tenants will continue to lack legal representation and will be unable to articulate the complicated arguments involved. For this reason, the plaintiffs in Lang v. Pataki are considering an appeal. They may seek a determination that the statute's broad restrictions on Housing Court judges' ability to stop evictions in the interests of justice are indeed unconstitutional.

Tenants with eviction cases in Housing Court should call Met Council's tenant helpline, (212) 693-0550, Monday-Wednesday-Friday between 1:30 and 5 PM. We are interested in hearing from people who have been affected by RPAPL 745(2) or 747-a. Send a brief description, including any court orders, to Met Council, 102 Fulton St., New York, NY 10038.