Conference Report: The New York City Housing Court in the 21st Century: Can It Better Address the Problems Before It?

Pages601-658

    The New York County Lawyers' Association (NYCLA) was founded in 1908 in response to the then prevailing exclusion of lawyers from bar membership because of their race, religion, gender or ethnicity. For almost 100 years, NYCLA's mission has been to promote the public interest by seeking reforms in the law and in the administration of justice, elevate the standards of integrity and professionalism, and provide free legal services to the indigent and others in need. With more than 8,500 members, NYCLA provides significant leadership on public policy and access-to-justice issues, ranging from adequate compensation for lawyers representing poor people, to a civil right to counsel, to diversity in the profession.

Page 601

I Introduction

On October 28-29, 2004, the Justice Center of the New York County Lawyers' Association (NYCLA), chaired by former Dean of Fordham University School of Law, John Feerick, hosted a conference on the New York City Housing Court, "The New York City Housing Court in the Twenty-First Century: Can It Better Address the Problems Before It?" (the "Conference"). The Conference, occasioned by the court's 30th anniversary, considered how the Housing Court is facing the challenges of the new century, in light of ever-changing social and economic conditions, and whether it is well prepared to meet these challenges in the coming decades. The Conference examined the court's role in responding not only to the legal questions that come before it, such as housing conditions, holdovers, and nonpayment of rent, but also to the myriad social and financial problems that underlie many Housing Court cases-problems that, if unaddressed, may lead to homelessness.

A Conference Purpose and Format

The Conference, an invitational forum, had eighty-two participants representing a broad array of experience and perspectives and drawn from the landlord and tenants bars, the judiciary, government, legal academia, and public advocacy organizations. The overarching goal of the Conference was to identify and propose ways in which the Housing Court might better meet its future challenges and address the legal and social issues that come before it.Page 602

Co-sponsored by the Benjamin N. Cardozo School of Law, Columbia University School of Law, and the Louis Stein Center for Law and Ethics of Fordham University School of Law, the Conference began the evening of October 28 with welcome remarks by Norman L. Reimer, President of NYCLA, and a keynote address by Judge Fern A. Fisher, Administrative Judge of the Civil Court of the City of New York. The opening remarks were followed by a reception for current and former Housing Court judges.

On October 29, after remarks by Honorable Jonathan Lippman, Chief Administrative Judge of the Courts, plenary panelists provided an overview of the critical issues confronting the Housing Court. The panelists included Judge Fern A. Fisher, moderator; John D. Feerick, Chair, NYCLA Justice Center, and former Dean, Fordham University School of Law; Judge Marcy S. Friedman, New York State Supreme Court; Maria Mottola, Executive Director, New York Foundation; Conrad A. Johnson, Columbia University School of Law; and Jonathan Newman, Finkelstein Newman LLP.

Conference participants then spent the rest of the day working in small groups, each of which discussed one of the following broad subjects concerning the Housing Court and its work:

- Pre-Adjudication Steps in the Housing Court

- The Adjudicative Process and the Role of the Housing Court

- Right to Counsel

- Litigants of Diminished Capacity

- Preserving the Housing Stock: Are There New Ways to Approach This and Measure Results?

- Social Services and Volunteer Programs in the Housing Court In a closing plenary session moderated by Professor Ellen Yaroshefsky of Cardozo School of Law, the working groups reported to conference participants on the recommendations for change that had emerged from their deliberations. While each of the working groups had a distinct mission, there were often common issues and complementary recommendations. All of the groups discussed the Housing Court's overwhelming workload and the problems engendered by summary proceedings. One notable result of the Conference was that it presented a workable proposal for a right to counsel in Housing Court cases that could result in eviction. This conference report, which contains the working groups' reports and recommendations, will be used to fashion a plan of action that a NYCLA task force will seek to implement.Page 603

B Description of the Working Groups
1. Working Group I: Pre-Adjudication Steps in the Housing Court

Working Group I examined the pre-adjudication process: the stages of a housing case from the first notice that a claim exists, up to, but not including, the stage when the claim is formally presented to a judge or jury for adjudication. The pre-adjudication process is crucially important, since most cases in the Housing Court end with a default judgment or a stipulation of settlement, not formal adjudication. The process is long and complex, and implicates many substantive and procedural rights. The pre-adjudication process is further complicated by the fact that legal counsel does not represent the overwhelming majority of tenants. To assist pro se litigants, the Housing Court has an array of services and systems designed to help litigants navigate the important and complex pre-adjudication process.

2. Working Group II: The Adjudicative Process and the Role of the Court

The overwhelming majority of tenants and a significant number of landlords (largely outside of Manhattan) are not represented by legal counsel in Housing Court. The primary emphasis of the court, bar associations, and advocacy groups in recent years has been assisting unrepresented parties in understanding their legal rights and negotiating fair settlements of their cases. However, settlement agreements articulate or presume that the parties are knowingly and willingly giving up their right to go to trial. The court frequently advises unrepresented litigants that if they do not settle their cases, they will have to go to trial. Litigants are also advised (in materials prepared by the court, bar associations, and individual judges) that if they do go to trial, the only assistance the court will or is able provide is the explanation of procedures-the Housing Court cannot help pro se litigants establish claims or defenses. Under such circumstances, Working Group II considered whether unrepresented litigants have a right to have their claims or defenses adjudicated by a trier of fact, in lieu of accepting what they may believe to be an unfair settlement. The group also discussed whether demanding that the Housing Court provide assistance beyond mere procedural explanations would significantly and negatively alter the role of the judge as an impartial arbiter of claims.Page 604

3. Working Group III: Right to Counsel

An overwhelming majority of tenants who appear (or default) in New York City Housing Court proceedings cannot afford to pay for legal representation. Housing Court proceedings are summary proceedings that move faster than normal civil litigation and involve a complex web of procedural requirements and the relevant substantive law governing rent...

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