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Posted by Ronin Amano on June 30, 2001 at 02:04:45:

In Reply to: Re: 4-year posted by Ronin Amano on June 23, 2001 at 16:37:08:

: I would be interested in seeing some non-housing judge opinions that supported the DHCR interpretation. Could you cite some for me?

: In any case, I definitely agree that anyone in the 4 years should file now just to make it simple for the low quality, mean-spirited, dim-witted housing judges who made it through law school without learning the most elementary legal principles.

A Tenant.Net reader has been kind enough to share a non-housing judge opinion with me. And boy was I surprised.....

The 'low quality, mean-spirited, dim-witted [non-housing court] judges who made it through law school without learning the most elementary legal principles' are no less than the 1st App. Div. Obviously their opinion isn't the result of stupidity or absolute laziness. The only explanation for a court of that caliber taking a partisan dive is that they have lost their spines in the Pataki era. Ol' George has them shaking in their robes it would seem.

I intend to invite several law professors, and the like, to an on-air discussion about state court inability to handle the 'tough' issues of constitutional law using the Sessler v. DHCR case as an example. I'll make it a 29 minute special called "Pandering to Pataki", or "Craven Courthouse Cowards". Amazing how Pataki's screwing of J. Murphy has some judges petrified.

Given the fact that the App Div seemed incapable of understanding the concept of equal protection, we must again reexamine the necessity of federal intervention as per NEW YORK CITY BD. OF ESTIMATE v. MORRIS, 489 U.S. 688 (1989) in which all nine (9) justices agreed in the result and 7 agreed in the entire opinion (no Penn Station plurality here). "Because the boroughs have widely disparate populations - yet each has equal representation on the board - the Court of Appeals for the Second Circuit held that this structure is inconsistent with the Equal Protection Clause of the Fourteenth Amendment" Apparently the 1st App Div has been neutered by Pataki's politics and cannot see the simple fact that by granting landlords a 4 year statute of limitation with a free shield from fraud, while leaving the tenants exposed to both a six year statute of limitations AND an open statute limitations for fraud would violate the equal protection guarantee of the U.S. Constitution, and probably the state constitution as well. But given that this is a principle taught in the first year of law school, one would think that judges of the App Div level would hesitate to sign such a clear violation whether or not the parties argued the constitutional issues. And let's face it, Morris is the Supremes at their best. It's very clear binding precedent.

However, since they have done this, the statute is exposed to federal attack (as interpreted), and we can expect the feds to come in and do, once again, what our state courts are incompetent to do for themselves (for whatever reason).

(Sessler v. DHCR was an Article 78, so the rules where different. Basically in Ad Law proceedings the agency's factual findings are all assumed correct and only the interpretation of the statutes and constitution are involved.)

(The Morris case isn't exactly on point because it deals with the tougher issue of political reapportionment, but that issue subsumes the broader issues of disparate impact. The statute of limitations as interpreted by Sessler will cause disparate impact. Of course there are older Supreme Court cases more on the exact issue, but such a recent massive rewrite of NY Law as in Morris highlights the state's pattern of equal protection violations and the magnitude of these violations written into statute.)

Given the fact that a higher court in Manhattan has caved, the Brooklyn App. Term's Irizarry ruling would not persuade in Manhattan unless it is addressed to the 1st App Div. So nix my prior statement that it should (and yes, it still should but it won't).

Given the 1st App Div's ruling the Brooklyn App Term's Irizarry ruling deserves some credit. Despite the fact that this is first year Con law stuff, we do know that the App Term is notoriously anti-tenant. They deserve credit for not just citing Sessler and snickering under their breath until their own App Div reversed.

Even more frightening is that this lame excuse for an opinion, coming from a court as high as an App Div, snuck under my radar!! This was ripe for a Court of Appeals review. (shameless plug- help Ronin reconnect his Westlaw account, I'll accept Lexis in a pinch!!!)


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