A photograph of the 1968 riots at the Democratic convention in Chicago remained displayed on two large screens in the main hall of the Bar Association of the City New York throughout the day at the conference titled “New York City’s Housing Court at 40: Controversies, Challenges, and Prospects for the Future” on March 11, 2013. The photo, which had been used by New York Law School Professor Richard Chuse to illustrate the effect of the 1960s social movements on housing law, seemed an appropriate image to sum up the deep conflict between landlords and tenants which was the subtext of the conference.
Hundreds of landlord-tenant attorneys and advocates, judges, and academics gathered to celebrate and examine the 40 year history of the Housing Court. The conference lived up to its promise with lively reminiscences, discussions and debates. Sam Himmelstein was one of the co-chairs of the program and Elizabeth Donoghue appeared on a panel titled The Politics of Housing Court.
The broad range of perspectives was set forth clearly at the second plenary session, “Housing Court, the Economics of Rental Housing, and the Quality of Life in NYC,” where Columbia University Professor Peter Marcuse suggested that judges may have the authority to do more to prevent evictions, including staying evictions more than the 6-months specified in RPAPL 753. (The RPAPL provision applies only to holdover evictions and bars stays more than 6-months. Most evictions occur in non-payment proceedings where tenants where stays are conditioned upon either payment of the rent or depositing the rent with the court.) Harvard University Professor Matthew Desmond talked about his study of the long-term effects of eviction, including detrimental effects on people’s physical and mental health.
On the other end of the spectrum, at a workshop titled “The Politics of Housing Court,” Mitch Posilkin of the Rent Stabilization Association argued that it takes too long to execute warrants of eviction and that tenants file too many Orders to Show Cause. (An Order to Show Cause is most often filed to extend a tenant’s time to pay rent and therefore avoid eviction after a final judgment has been entered.)
One issue that initially drew silence from the “Politics of Housing Court” panel was the question of whether Housing Court judges terms should be extended from five to ten years. Currently when judges terms are up after five years they must be reappointed and most are reappointed. Mr. Posilkin, again expressing the frustration of his members at the delays in evicting tenants after a landlord prevails in court, suggested that his group would support longer terms if such delays and excessive Orders to Show Cause were addressed. Mr. Posilkin’s suggestion seemed to belie the often repeated feel-good assertion by several moderators that “all of us here want to prevent evictions.” The reality is that tenant advocates and attorneys want to keep tenants from being evicted while landlords and landlord advocates want to be able to recover apartments expeditiously when a tenant is not paying rent or breaching his or her lease.
While landlords and tenants may not share the same commitment to preventing evictions, there were a number of areas where both sides could agree. At the panel “The Housing Court and Access to Justice.” there seemed to be unanimous agreement that all parties in Housing Court should be represented by counsel, a proposal also supported by Jonathan Lippman, the Chief Judge of the State of New York Court. Given current budget restraints, this is unlikely to happen in the near future. Currently approximately 99% of tenants and 20% of landlords are unrepresented by counsel. Both sides also seemed to agree that housing conditions have improved overall, while there is still plenty of room for improvement.
At the “Access to Justice” panel tenant attorneys and advocates proposed that judges do a more thorough job “elocution” stipulations of settlement. “Allocution” is the process by which judges explain to unrepresented parties, mostly tenants, the terms of stipulations of settlement. There was no objection from the landlord bar to this suggestion and both sides agreed that allocutions have become more thorough over the years, recently in part due to Deputy Chief Administrative Judge for the New York Court’s Fern Fisher’s Advisory.
There was also unanimous agreement that the Housing Court should be made a regular constitutional court. Currently it is a part of the Civil Court. Elizabeth Donoghue talked about her efforts, as Chair of the City Bar Association Judiciary Committee, to recruit diverse candidates for judgeships. There seemed to be agreement that court attorneys are disproportionately represented in the candidate pool.
All attendees were also in agreement in their appreciation for the hard work, accessibility and congeniality of Judge Fisher and the tremendous and successful efforts of conference organizers Housing Court Judge Michelle Schreiber, Andrew Scherer, Retired Judge Israel Rubin, Chair of the City Bar’s Housing Court Committee Sateesh Nori, landlord attorney David Skaller and tenant attorney Sam Himmelstein, and the other members of the Advisory and Planning Committees for the event.
The biggest laugh of the day, perhaps of approval from sitting judges and nervousness from others, came when Judge Fisher noted that in Boston, Massachusetts Housing Judges are appointed for life. It did not appear such a term would pass muster in as combative a place as New York City although it did make the 10-year term proposal look modest in comparison.
Sam Himmelstein wrapped up the day by noting that when he started out 33-years ago, slim and with a full head of hair, the leaders of the bar all appeared to be paunchy and balding. Sam, one of current the leaders of the tenant bar did not need to deliver the punch line.