Letter To Judge Fern Fisher Brandveen
From the Joint Legal Services and Legal Aid Task Force on Housing
on Housing Court 'Reforms.'

Hon. Fern Fisher-Brandveen New York City Civil Court 111 Centre Street New York, New York 10013 Dear Judge Fisher-Brandveen: We write as the coordinators of the Legal Aid Society/Legal Services for New York City Housing Task Force to give our comments on the Annual Review of the Housing Court Initiative. Unfortunately, we cannot share your positive feelings about the effects the Housing Court Initiative has had on pro se tenants.1 Although the Initiative has had some beneficial effects on the Housing Court, in general, most of the changes have hurt pro se tenants. Over all, the Initiative appears to praise speed over the quality of justice administered. We respond to the Annual Review on the Initiative point by point. The Resolution Parts The creation of Resolution and Trial Parts has been a failure. Having more than one judge hear a case has discouraged fair resolutions. Because of the Office of Court Administration's over-emphasis on speeding cases through the system rather than on the quality of justice administered, it is very difficult for pro se tenants to get adjournments necessary to establish their defenses and possible counterclaims in the Resolution Parts. 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. We see no decrease in hallway negotiations since the Initiative. The resolution parts encourage forum shopping by landlords and do not promote judicial efficiency. A judge can become familiar with the issues in a case, but it is tried before another judge who has no familiarity with the issues. This is very confusing to pro se tenants who often do not understand that they must explain their entire case again to a new judge. The existence of trial parts is used to intimidate tenants into settling their cases. Landlord's attorneys routinely threaten pro se tenants that they will have only five days to pay all the rent if they elect a trial. Though trial judges are supposed to refer a case back to the resolution part if the parties agree to settle before testimony is heard, this is often ignored for the sake of expediency. In addition, if a landlord's attorney disagrees with a resolution judge, the attorney will request a trial to see if s/he can obtain a more favorable outcome. Moreover, under the new structure, pro se tenants do not see trials or hearings and thus cannot make an informed decision about going to trial. Lastly, it is easy for resolution judges who are already overburdened to send out cases that could be settled for trial. It is our experience, for example, that more often than not, when a pro se tenant requests an abatement, the case is sent out for trial. This practice belies the stated purpose of the resolution parts. Trial Ready Cases We note the alarming statistic that Bronx has by far the most cases and by far the least amount of trials. The Court should examine this statistic to determine whether in the Bronx more cases are forced to settlement for the court's convenience. Experiences with the Initiative in Each County New York County - the pro se attorneys are very good. There are no practitioner committees that meet with the court. Kings County - The order to show cause line is extremely congested in Kings County. The pro se attorneys are very good. Bronx County - It is ridiculous to suggest that there is a problem with the "numbers of orders to show cause" in the Bronx. The problem is that a pro se tenant will emerge from court on his/her first appearance with a stipulation either consenting to judgment or giving the landlord the right to move for judgment upon default, which results in a judgment on the second appearance. The time frames given to the tenants to come up with money are unrealistic. This is the poorest borough in the City. Legal resources available to poor tenants are stretched to the breaking point. Judges refer people to Legal Aid and Legal Services with no appreciation of how limited our resources currently are and then get angry and sanctimonious when the tenant reports that they have not been able to get a lawyer within the time given to them. Although some early stipulations will allow the tenant to seek a show cause for good cause shown, many such stipulations say that the tenant can only do so upon presentation of a Jiggetts approval. Given the fact that Jiggetts approvals take well over a month to obtain, it is little more than a bitter joke to give a pro se tenant two weeks to pay all of the arrears and condition further extensions on Jiggetts approvals, when the tenant has no current representation. It should be the obligation of judges and court attorneys to advise pro se tenants in this situation that such stipulations can lead to their evictions. Yet this is the standard type of stipulation we see brought to us by pro se tenants. There might well be fewer orders to show cause if there were fewer final judgments on the first time the tenant appeared in Court which is a pervasive problem in Bronx County. This may also be related to the appalling statistics on trials in Bronx County. Queens County. While it is true that there is more space in the Queens courthouse for conferences than in the other courthouses, most settlement negotiations still take place in the hallway. Nearly all of the court attorneys wait for the landlord's attorney to speak to the pro se tenant outside in the hallway, even if there are no parties before them in the conference room. Landlord's attorneys have unfettered access to files and freely call out tenant names from the front of the conference room at their convenience. Pre-printed "fill in the blanks" stipulations are still the norm, instead of the court form stipulation. Moreover, because the conference rooms and courtrooms are separated, most of the judges take no role in the settlement process. Pro se litigants check into parts before the judge is on the bench and then see only the court attorneys, whom many assume to be the judge. When frequent practitioners in the relatively small Queens landlord bar call court attorneys by their first names, it adds to the perception that the tenant can do no better than agree to whatever the landlord's attorney proposes. Both an informational announcement and a script for court attorneys explaining their function that is read to all litigants might help correct some of these deficiencies. While objection to the 2:00 p.m. calendar has been acknowledged, there is also widespread abuse of the 9:30 a.m. check-in by landlord's attorneys. Many check-in at 9:45 a.m. or later and only return after answering the commercial or Civil Court calendars at 11:30 a.m. or 12:00 p.m. or later. In addition, attorneys waiting in Part X may be held to 3:30 p.m. to find our whether their trial will go forward that same day. By 1:00 p.m. a decision should be made whether a case can go to trial in the afternoon. To make attorneys, parties and witnesses come back at 2:30 p.m. and wait another hour only to be told to come back in ten days and repeat the process is frustrating to unproductive for everyone. While we do not see a need for a Coop/condo part in general, we do see that landlord's attorneys use its existence to forum shop. When they like the coop/condo judge there tend to be more cases in that part and vice versa. Landlord's attorneys do not color code the petitions and mostly do not comply with the Initiative when it comes to coop/condo cases. Part Y is a huge problem in Queens County. The Civil Court judges do not know the law on rent deposits, RPAPL 747-a and a host of other landlord/tenant issues. The majority of decisions of the Civil Court in Queens could be appealed if we had the resources to do so. Lastly, the Pro Se attorneys and Resource Center do not function in Queens County. Richmond County - The addition of a housing court judge has been a positive change which has brought much needed balance to that borough. Richmond County still has no access to HPD violations which is vital to the Housing Court's function. Specialized Treatment of Cases. As you are aware, we are opposed to the specialized treatment of cases as it implies that certain cases are more worthy of attention than other cases. For example, establishment of a special part for wealthier litigants (the coop/condo part) who are more often represented by counsel creates a sense of favoritism by the Court. Coops/Condos. See comment above. The New York City Housing Authority ("NYCHA") Part. Our experience with NYCHA cases shows that NYCHA often brings cases against tenants on direct vendor welfare payments as well as tenants who owe less than one months rent. Elimination of these frivolous cases would greatly reduce the number of cases in this part. We have made this suggestion for years. Perhaps charging NYCHA for index numbers like all other petitioners would alleviate this problem. Night Court and Extended Evening Hours. We commend the court for this effort which will aid litigants who work during the day and cannot afford to take time off work. Resource Centers. Resource centers, videos and handouts do not take the place of providing legal information to tenants about their individual cases. Many pro se tenants have marginal education levels, do not speak or read English and a substantial minority are illiterate. There is no resource center on Staten Island. Pro Se Answer Form. The pro se answer form is a giant step forward, but the clerks remain a substantial problem. Clerks do not record what the tenant says and almost uniformly write, "needs time" or "general denial." There should also be a check-off to indicate that a request for an inspection has been made. Tenants are told to make the request in the parts because there are no inspectors available when they answer. Volunteer Lawyer Project. We have not seen any results from this program. We have not seen more pro se litigants obtaining valuable legal information. Community Courts. We are concerned that tenants appearing in the Red Hook court will be at an even greater disadvantage than those appearing in Housing Court. The judge will not have the same familiarity with landlord/tenant law and other Housing Court resources will not be available to the tenant. HRA Partnership. We have not seen any improvement in the quality of services from Protective Services for Adults or HRA in general. Additional Interpreters. There is still a huge unmet demand for competent interpreters. Impact of the Initiative on Evictions Given the booming economy in New York City, we would expect dramatic decreases in filings, default judgments, warrants and residential evictions. We are disturbed at the negligible decreases in evictions. In conclusion, we praise the court for stating that it wishes to "encouraging the end to the swift 'factory' processing of cases," but regret that an over-emphasis on speeding cases through the system has betrayed that goal. We recommend that the Court place greater emphasis on ensuring that justice is achieved, that pro se litigants understand their rights and that adequate measures be taken to guarantee that tenant's defenses and counterclaims be brought to the court's attention so that fair and just resolutions are the norm and not the exception. Sincerely, Sandy Russo Judith Goldiner [1] We do not use the terminology "self represented" litigant because such terminology implies that a person has voluntarily agreed to appear without an attorney and understands their rights in Housing Court. The vast majority of pro se tenants do not appear without an attorney voluntarily, but rather are unable to afford an attorney or obtain one through Legal Aid or Legal Services.