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Posted by Ronin Amano on June 22, 2001 at 17:46:39:

In Reply to: 4-year posted by chelsea on June 21, 2001 at 23:54:09:

:
: Well, I'm not a lawyer but it's my understanding that that Cecilia v. Irizarry, while very encouraging, was a ruling by the second appellate term, and applies for the moment only to Brooklyn, Staten Island and Queens. If it survives the court of appeals, it would apply more broadly.

: Whether we like it or not, the four-year rule was stated pretty firmly in the 1997 rent legislation, which is what the latest regulations were based on. I wouldn't think any tenant should gamble that it's going to go away anytime soon.

But that's the point. The legislature passed the limit that the overcharge defense/cause of action can only include rent within 4 years of the last registered rent.

The DHCR tried to rewrite that to read that the 4 year limit applies to the 'rent paid' four years prior to the action.

In short, a standard Administrative action beyond statutory authority. This is an area of Administrative Law settled long, long ago. Even though it is just one appellate term, the Court of Appeals would have to rule that the DHCR has more power to legislate than the legislature. It aint gonna happen. This is basic stuff taught in the second year of law school and tested on the bar exam.

In fact, the real surprise here is that some dimwit in the Housing Court actually enforced a regulation over it's authorizing statute. Bizarre, but as long as it helps landlords the Housing Court will try it.

The principle holds true anywhere in NYS. Take Irizarry ruling and cite the Court of Appeals cases that they do. The Court of Appeals has already spoken on this. This is horse and buggy stuff. In a nutshell:

Constitution
All rights (here consider the U.S. and New York constitutions together)

Statutes
all statutes must not abrogate rights in the constitution.

Regulations
All regulatory bodies must be authorized by statute to regulate an area. All regulations must not abrogate rights or be inconsistent with either the constitution or statutes.

As many of you know, some laws sit on the books for years gathering dust and are declared unconstitutional only when enforced (e.g. guiliani and the mask law). The same holds for regulations.

The surprising thing is that any judge would be stupid enough to allow a regulation to trump a clearly written statute of limitations (which agencies can't write anyway!) This is verboten. To give an analogy, it is like a math teacher not knowing how to add 2 + 2.

The reason all of this is its own area of law (mainly seen in the Article 78 context where you have the smarter State Supreme Court justices (same rank as App Term justices)) is because originally courts were offended that laws, called regulations, were being passed by people not elected to office, but appointed. They placed important restraints on the agencies before making them constitutional. Basically, the legislature said, 'we dont want to have to debate penny ante parking rules', and the court let them delegate when the legislature said, 'and they can handle all the penny ante parking violation disputes for the court as well.' !!!

So what ended up as judicial outrage over the legislature delegating away responsibilities, became judicial satisfaction when the legislature amended and delegated away judicial responsibilities! (There is more about the legislature delegating away executive power also, but it's more complex and not relevent here- Pataki was very much in control!)

To summarize, the specific decision in Irizarry was in one App Term. But the principles it's based on date back to the 1800's and only a complete idiot, or a housing court judge, could fail to recognize an unauthorized regulation, especially a statute of limitation.

Ronin

• Rent Wars

Follow Ups:

• Re: 4-year chelsea 06/23/01 (6)
  • Re: 4-year Ronin Amano 06/23/01 (5)
    • RONIN RETRACTION!!! DANGER!!! Ronin Amano 06/30/01 (0)
    • 4 year rule should not apply if no initial registration nyhawk 06/23/01 (3)
      • DHCR mini-histories chelsea 06/23/01 (1)
        • Re: DHCR mini-histories nyhawk 06/23/01 (0)
      • Re: 4 year rule should not apply if no initial registration Ronin Amano 06/23/01 (0)
• Disclaimers Ronin Amano 06/22/01 (0)

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: : 
: : Well, I'm not a lawyer but it's my understanding that that Cecilia v. Irizarry, while very encouraging, was a ruling by the second appellate term, and applies for the moment only to Brooklyn, Staten Island and Queens. If it survives the court of appeals, it would apply more broadly. 

: : Whether we like it or not, the four-year rule was stated pretty firmly in the 1997 rent legislation, which is what the latest regulations were based on.  I wouldn't think any tenant should gamble that it's going to go away anytime soon.  

: 
: But that's the point. The legislature passed the limit that the overcharge defense/cause of action can only include rent within 4 years of the last registered rent.

: The DHCR tried to rewrite that to read that the 4 year limit applies to the 'rent paid' four years prior to the action.

: In short, a standard Administrative action beyond statutory authority. This is an area of Administrative Law settled long, long ago. Even though it is just one appellate term, the Court of Appeals would have to rule that the DHCR has more power to legislate than the legislature. It aint gonna happen. This is basic stuff taught in the second year of law school and tested on the bar exam.

: In fact, the real surprise here is that some dimwit in the Housing Court actually enforced a regulation over it's authorizing statute. Bizarre, but as long as it helps landlords the Housing Court will try it.

: The principle holds true anywhere in NYS. Take Irizarry ruling and cite the Court of Appeals cases that they do. The Court of Appeals has already spoken on this. This is horse and buggy stuff. In a nutshell:

: Constitution
: All rights (here consider the U.S. and New York constitutions together)

: Statutes
: all statutes must not abrogate rights in the constitution.

: Regulations
: All regulatory bodies must be authorized by statute to regulate an area. All regulations must not abrogate rights or be inconsistent with  either the constitution or statutes.

: As many of you know, some laws sit on the books for years gathering dust and are declared unconstitutional only when enforced (e.g. guiliani and the mask law). The same holds for regulations.

: The surprising thing is that any judge would be stupid enough to allow a regulation to trump a clearly written statute of limitations (which agencies can't write anyway!) This is verboten. To give an analogy, it is like a math teacher not knowing how to add 2 + 2.

: The reason all of this is its own area of law (mainly seen in the Article 78 context where you have the smarter State Supreme Court justices (same rank as App Term justices)) is because originally courts were offended that laws, called regulations, were being passed by people not elected to office, but appointed. They placed important restraints on the agencies before making them constitutional. Basically, the legislature said, 'we dont want to have to debate penny ante parking rules', and the court let them delegate when the legislature said, 'and they can handle all the penny ante parking violation disputes for the court as well.' !!!

: So what ended up as judicial outrage over the legislature delegating away responsibilities, became judicial satisfaction when the legislature amended and delegated away judicial responsibilities! (There is more about the legislature delegating away executive power also, but it's more complex and not relevent here- Pataki was very much in control!)

: To summarize, the specific decision in Irizarry was in one App Term. But the principles it's based on date back to the 1800's and only a complete idiot, or a housing court judge, could fail to recognize an unauthorized regulation, especially a statute of limitation.

: Ronin


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