Protecting the Rights of Litigants With Diminished Capacity in the New York City Housing Courts

• Author: Zelhof/Goldberg/Shamsi
• Position: Deputy Director/Supervising Attorney at MFY/Staff Attorney at MFY
• Pages: 733-772

Jeanette Zelhof is the Deputy Director and Managing Attorney at MFY Legal Services, Inc. Andrew Goldberg is a Supervising Attorney at MFY Legal Services, Inc. Hina Shamsi was a Staff Attorney at MFY Legal Services, Inc. during the writing of this article. The authors wish to thank Elise Brown and Dinah Luck for research assistance.

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Introduction

According to a 2002 New York City Department of Health and Mental Hygiene Community Health Survey, approximately 381,000 New Yorkers suffer from some form of serious mental illness.¹ The New York City Department of Aging indicates that, according to the 2000 Census, there are over 930,000 persons over age 65 living in New York City.²This number does not include those living in "group quarters," a category that includes nursing homes and other institutions.³Thus, large numbers of individuals in New York City who are afflicted with mental illness or who are over age 65 are at risk of being sued in proceedings in the Housing Part of the Civil Court of the City of New York (the Housing Court) in the event of nonpayment of rent or allegations of activities that could jeopardize their tenancies.

Individuals with mental illness and individuals suffering from age-related infirmities may experience great difficulty negotiating the Housing Court system. The system has strict procedural requirements, lacks a right to assigned counsel, yet has a mandate to summarily process cases.⁴Page 734

Individuals with diminished capacity, without understanding the legal consequences of their consent, have easily been pressured into signing agreements that give judgments and warrants to landlords. These individuals may also be more susceptible than other litigants to the pressure on Housing Court judges to expeditiously process summary proceedings. They may also be adversely impacted by the Housing Court's hectic environment,⁵where, often, little time is allowed for inexperienced defendants to fully comprehend the issues despite the enormity of the rights at stake. On the occasion of the 30th Anniversary of the Housing Court, this article examines the statutory and jurisprudential bases for protections currently in place for litigants with diminished mental capacity. This article also suggests improvements, including accommodations pursuant to the Americans with Disabilities Act of 1990 (the ADA)⁶and a right to counsel, so that the Housing Court can better serve and protect the rights of litigants with diminished capacity.

The article is based on the experiences of attorneys in the Mental Health Law Project and the Adult Home Advocacy Project of MFY Legal Services, Inc. (MFY) in the Housing Courts in the five boroughs of New York City. MFY has provided free civil legal services to low-income New Yorkers since its founding in 1963. Originally a unit of Mobilization for Youth, a social welfare organization on Manhattan's Lower East Side, MFY was incorporated as a separate not-for-profit law firm in 1968. In 1983, the Mental Health Law Project of MFY was created to provide advocacy services and legal representation to persons with psychiatric disabilities throughout New York City. In 1994, the Adult Home Advocacy Project was created to focus on the rights of disabled residents of adult homes (known as "board and care homes" outside New York State) citywide. In these projects, MFY's staff represents persons in, among other matters: housing, Supplemental Security Income/Social Security Disability (SSI/SSD) benefits, public assistance, Medicaid, and civil rights issues. MFY's work enables persons with mental illness to avoid homelessness and hospitalization. In addition, it enables such persons to remain in the community by ensuring the pres- ervation of income streams and affordable housing, including private apartments, public housing and supportive housing. The staff of the Mental Health Law Project and the Adult Home Advocacy Project train, advise and represent thousands of persons with disabilities each year.

Part I of this article describes the evolution of society's understanding of people with mental illness and their capacity to make decisions, as well as the reflection of that evolution in more flexible and enlightened legislation and jurisprudence. This section reviews how New York's legislature and its courts have applied the state's long-standing commitment to rigorous protection of the mentally ill, culminating in the passage of the guardian ad litem provisions of the Civil Practice Law and Rules (CPLR) in 1962. Part I also describes the provisions of the ADA that, as recently interpreted by the United States Supreme Court, guarantee equal access to courts for litigants with disabilities.

Part II assesses the implementation and adequacy of the guardian ad litem provisions of the CPLR. It describes the obligation of a party to inform the court if the party is aware that another litigant has diminished capacity. This section also describes the court's own obligation to be diligent in determining whether a litigant requires the appointment of a guardian ad litem to protect his or her rights in a proceeding. Part II lays out the standards for appointment of a guardian ad litem, making it clear that a judicial declaration of incompetence is not necessary; instead, the standard requires that the litigant be "incapable of adequately prosecuting or defending" his or her rights.⁷The obligations of the guardian ad litem and the court after the guardian is appointed are also discussed in this section. Importantly, this article shows that despite the Housing Court practices to the contrary, guardians ad litem do not have the authority to settle cases on behalf of a ward; only the court may authorize a settlement after adequate inquiry into its bases and terms. Part II includes recommendations for better implementation and enforcement of the guardian ad litem provisions of the CPLR.⁸

Part III of this article sets forth a series of recommendations that would bring the Housing Court system into better compliance with its obligations under the ADA. These recommendations include accom-Page 736 modations that would identify litigants with diminished capacity at the earliest stages of a Housing Court proceeding as well as a variety of other accommodations that would assist such litigants to access the court system in order to adequately defend their rights. Part III concludes with the recommendation that counsel be appointed for the Housing Court litigants with diminished capacity in order to ensure equal access to the court system.

I Background: Societal Developments Reflected in Statutes and Case Law

A Societal Developments: Evolution Of Understanding Of Mental Illness

Society has long grappled with the challenge of providing housing and social services for those with diminished capacity. Until the middle of the twentieth century, people with severe mental disabilities were largely restricted to living in mental institutions apart from the rest of society. With developments in the clinical treatment of mental illness by the middle of the twentieth century, and the advent of medications such as antipsychotic drugs designed to minimize the adverse symptoms of various types of mental illness, individuals with disabilities became more able to live on their own in community settings. With these developments came a more enlightened attitude toward people with mental illness and a public policy that encouraged integration into all aspects of society. Specifically, in New York State, these developments led to a policy of "deinstitutionalization" with the goal of reintegration of these individuals into the community.

One societal effect of these developments is that large numbers of individuals with...