Date: Thu, 07 Jan 1999 09:39:08 -0500
Subject: The City-Wide Task Force on Housing Court Annual Conference


“Meeting the Challenge of Pro Se Litigation in Housing Court”

Co-Sponsors: Columbia Law School Center for Public Interest Law, The
Legal Aid Society, Legal Services for New York, Columbia Housing  Law
Workshop, & Metropolitan Council on Housing

January 22, 1999,  10:00-4:00
at Columbia University School of Law
435 W. 116th Street


10:00 - Registration & Continental Breakfast
10:30 - 12:30 - Morning Session

  -- Opening Remarks

  -- BoroughTask Force - Reports and Plans
     by Task Force Staff and Various Task Force Members

  -- Rent Deposits, Stays and Use of the Lang v.Pataki Decision
     Panel Presentation by: Judith Goldiner & Amanda Morretti (Legal Aid
     Society), Ed Josephson (Brooklyn Legal Services, Corp. B)

  -- New Computer Technology for Pro Se Answers in Non-Payment Cases
     Presentation by: Richard Zorza (The Fund for the City of New York)
12:45 - 1:45 - Lunch
2:00 - 4:00 - Afternoon Session

  -- Remarks of Welcome by Ellen Chapnick, Director, Columbia Center for
     Public Interest Law

  -- Housing Court Justice Awards Presentation with Assemblymember 
     Scott Stringer
Address by the Administrative Judge:
Update on the Housing Court Initiative
by Justice Fern Fisher -Brandveen, New York City Civil Courts
  -- Pro Se Motions for Appointment of Counsel in Housing Court
     Sandy Russo (Legal Services on New York)
     Representative from Metropolitan Council on Housing

  -- Closing Remarks

4:00 - Reception

Directions: #1 or #9 IRT Train to 116th Street,
walk across brick-paved campus to Amsterdam Avenue.
All advocates, attorneys, and law students are invited.
Please register prior to the event at (212)982-5512.
Suggested Donation for Materials/Lunch: $5.00

The Tenant Network(tm) for Residential Tenants
  NYtenants(tm) Discussion List: email to  
  and in the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant 
activists and is not considered legal advice.

Date: Wed, 20 Jan 1999 18:03:24 -0500
Subject: Tenants Online 1/20/99

Tenants Online                                           1/20/99
In this issue...

* City Council Race
* Met Council Dance/Fundraiser
* 515-521 W. 122nd St. Tenants win Jewish Theological Seminary Case 
* Court Rules for Religious Landlords
* New York Post Editorial (Drek)


SUBLIMINAL CAMPAIGN MESSAGE: Vote for Christine Quinn on February 16
to replace Tom Duane in the City Council Third District Special Election.
Call 212-921-9104 to volunteer with phone-banking, flyering, etc.
If you have friends in the West Village, Chelsea, Clinton or Soho,
call them and tell them to vote for Quinn on Feb. 16.

This is a very important message and if tenants do not get out,
there's a good chance Christopher Lynn, friend of landlords, Antonio
Pagan, Don Cappoccia, Tom Ivelli, etc., will be elected.




Friday, January 22nd from 8 pm to 2 am

   Dumba Gardens
   57 Jay St. in Brooklyn
   (F Train to York St - 1st stop into/last stop out of Bklyn
   --walk two blocks down hill on Jay St.)

Live DJs will spin Ska, Hip Hop, New Wave, Noise, African, Punk and more.
Watch radicals do the Limbo! Plus... Raffles, Literature Tables, 
Tenant games [sic], Landlord Pinatas and your friendly neighborhood 
Tenant organizers.

$5 - 10 Sliding Scale  All ages admitted

Soft drinks and fruit jueices will be for sale, all else is BYOB

For more info: call the Dumba Gardens Hoteline: 212/726-2686

Met Council on Housing is an independent tenant union in its 41st year.  We
are committed to the preservation of tenant rights and the struggle for
decent, affordable housing for every New Yorker.  Met Council operates a
tenant hotline Mondays, Wednesdays and Fridays from 1:30 to 5 p.m.  To speak
to a tenant counselor or to find out more about what we do call 212/693-0550.


The above is a free announcement for Met Council. Now only if they
had a Mike McKee pinata... it would be more worthwhile and get a 
larger crowd!




Wed, 13 Jan 1999

Tenants at 515 and 521 West 122nd Street and their lawyer, Catharine A.
Grad of Grad & Weinraub, have a significant victory to celebrate. Housing
Court Judge Laurie L. Lau found that the Jewish Theological Seminary does
not have a legal right to evict at least 10 households of rent-stabilized
tenants—the majority of whom are immigrants from Haiti—at the two buildings
on West 122nd Street. The seminary has been carrying on a three-year battle
to try to force out long-term residents in order to make dormitory space
for students. The decision will stop the seminary from seeking to evict at
least half a dozen other tenants at the buildings.

The seminary stopped renewing leases in the fall of 1995, and began court
proceedings in the fall of 1996, after a year in which both tenants and
elected officials unsuccessfully attempted to persuade seminary
administrators to agree to a negotiated solution.

The seminary recently offered leases to several tenants with especially
strong cases. During the summer of 1998, several other tenants, who faced
substantial legal obstacles in fighting their cases, accepted a modest
settlement from the seminary and moved out. A family of seven that was
forced to move out during the summer has still not found a home.

The tenants do not believe that the seminary can win an appeal of Judge
Lau’s decision. "The only way that they can ever win is if we give up—and
we’re not going to give up," said Jocelyne Daniel, co-chair of the tenants’

Vajra Kilgour, the association’s other co-chair, also expressed optimism.
"All along, the seminary administrators have never offered any moral
justification for the evictions, and they’ve always excused their behavior
based on a claim to a legal right to evict their neighbors. This ruling
proves that they never even had a legal right. If the seminary’s
chancellor, Ismar Schorsch, wants to continue to put himself forward as a
moral spokesperson for Conservative Judaism, then he should be able to
summon up the moral strength to do the right thing here, and stop all of
the eviction proceedings now."


New York Times, January 14, 1999
By The Associated Press

SAN FRANCISCO (AP) -- Landlords can cite religious beliefs in refusing to
rent to unmarried couples living together, a federal appeals court ruled

The 2-1 decision by the 9th U.S. Circuit Court of Appeals favored two
Anchorage landlords fighting Alaska's ban on housing discrimination based
on marital status. 

Writing for the majority, Judge Diarmuid O'Scannlain said the Alaska law,
and a similar ordinance in Anchorage, interfered with property owners' free
exercise of religion as well as their property rights and freedom of speech. 

The dissenting judge said the ruling could lead to denials of housing to
divorced people, interracial couples and victims of domestic abuse. 

The U.S. Supreme Court has not ruled on the issue. If Thursday's ruling
stands, it will be binding on federal courts in Alaska, California and
seven other Western states. 

Assistant Attorney General Robert Royce said Alaska would ask the full
appeals court to hear the case, and could appeal to the U.S. Supreme Court. 

Attorney Steven T. McFarland of the Center for Law and Religious Freedom
said the ruling could help restore religious rights weakened in a 1990
Supreme Court case involving religious use of the drug peyote. That ruling
said laws that are neutral toward religion are valid even if they infringe
on some people's beliefs. 

"The school district that doesn't want to allow parents to opt out of a
religiously objectionable curriculum, now they've got to listen to that
parent," said McFarland, whose group is affiliated with the Christian Legal
Society. "The public hospital that doesn't want to accommodate the employee
who needs Yom Kippur off now has to listen to him."



OK, did you catch this one? It makes as much sense as Sheldon Silver and
Vito Lopez claiming they are on the tenants' side. But this is what the
landlords and real estate do fabuously well -- long-term public relations.
This kind of "education," sinking into the minds of impressionable yuppies
and truck drivers, seemingly innocuous, creates the opinion polls from 1997
where most of the public did not care about, or misunderstood, what tenant
protections were really about. 

Politicians hide behind public opinion. When Vallone and Silver stab
tenants in the back, they know their political position is still secure.
Then there are the pretenders, i.e., Fields, Michels, etc., who scream to
the world how much they care about tenants, and then duck for cover and cry
that they tried, but couldn't do anything. As long as they are not
"required" to deal with tenant issues in a serious way, they won't. As one
Assembly member put it, as long as Mike McKee and Tenants & Neighbors runs
interference for the Democratic Party, tenants will continue to be

Tenants have yet to make their case in the body of public opinion. When the
next crisis comes, not too far away, it appears tenants will again lose

New York Post
Editorial, January 14, 1999


City Council Speaker Peter Vallone's ''look-at-me, I'm-running-for-mayor''
State of the City address yesterday had its interesting moments. He
proposed, among other things, blowing up the Board of Education - a
compelling notion, and one that deserves further study. 

But he was dead wrong on housing. 

Vallone wants to create something called the Moderate Income Housing Trust
Fund. It would have the authority to issue bonds; the bonds would be backed
by the estimated $75 million in taxes generated by the sale of the World
Trade Center. Vallone's purpose: to build 20,000 units of ''affordable

But city government has been in the affordable-housing business for years,
and the results are not encouraging. In the 1980s and 1990s, self-appointed
homeless ''advocates'' shouted ''Housing! Housing! Housing!'' The city
responded with a $4-billion program to construct or renovate 40,000 housing
units throughout the city. And spent 50 percent more per unit than a
private developer or non-profit group would have. 

Worse, the city exhausted its credit limit in the process and had to go to
Albany for authority to fund repairs to streets and bridges. 

There's a better way. 

New York City can justifiably be described as a hellish place to build
housing, regardless of the price. The battle over extending rent control
nearly two years ago vividly demonstrated the clout of tenants relative to
that of landlords in political councils. Landlords canraise rents, in most
cases, only by following a laborious process. 

Rent control is only the best-publicized disincentive to housing
construction. There are also the city's notoriously generous laws granting
tenants nearly infinite rights against their landlords. 

Just last Sunday, The Post reported the story of an Upper West Side
tenant's 35-year-old lease agreement with a long-gone landlord under which
he pays less than $100 per month for his apartment. This sweet deal has
stood up against every legal attack successive owners could throw at it. 

And then there are the Manhattan buildings constructed under the
Mitchell-Lama program. The program expressly permits bringing rents to
market levels after three decades - which, along with tax breaks, was the
principal construction incentive to begin with. Now, one owner on the Upper
West Side is proposing to do just that. The tenants, even though they knew
the facts full well, have nevertheless gone to court. 

Add to all this the legendarily byzantine complexity of the city's zoning
laws, lawsuit-happy environmental advocates and building codes that are
among the pickiest in the nation, and what do you have? 

You have a city in which it takes a brave or foolhardy entrepreneur to
stake his fortunes on building and maintaining housing. That's the
situation Speaker Vallone should address rather than look for windfall
profits to finance white elephants. 

The Tenant Network(tm) for Residential Tenants
  NYtenants(tm) Discussion List: email to  
  and in the body of the message put "subscribe nytenants".
Information from TenantNet is from experienced non-attorney tenant 
activists and is not considered legal advice.

Date: Tue, 26 Jan 1999 19:31:58 -0500
Subject: Tenants Online 1/26/99

Tenants Online                                           1/26/99
In this issue...

* West Side City Council Race: Today's Voice reveals 
  Christopher Lynn's Suspect Pals (Antonio Pagan, Don Capoccia, 
  Rent Stab. Assoc., Abe Hirschfeld, Robin Byrd, etc.)

* Decision on Eviction Law Leaves Uncertain Results

* State Court Rules on Tenant Security Cases 

Listen to Housing Notebook, Thursdays at 7 p.m. on WBAI, 99.5 FM
--for residents of Manh. Plaza
Wednesday, January 27 at 8: p.m. in the Ellington Room
No, we're not advertising for available apartments (and don't get 
ideas that we do this very often). This is an unpaid announcement.

APARTMENT AVAILABLE -- Large floor-through apartment in convenient 
Clinton location. One bedroom (plus small den), rent $1,050. Active 
in community or building/work or live in Clinton a plus. Call Nancy 
(212) 541-5996. References and $25 application fee required.

The Village Voice: The Company He Keeps
January 27 - February 2, 1999    
Towers & Tenements
by j.a. lobbia     

The Company He Keeps: Chelsea candidate Chris Lynn's suspect pals   
In his campaign to fill a vacant West Side City Council seat, Christopher
Lynn points proudly to endorsements from political heavyweights like the
Village Reform Democratic Club and the Stonewall Democratic Club, and to
his résumé, which lists two commissionerships in the Giuliani
administration. But other associations, including one with a former
campaign worker arrested this month on drug and weapons charges, are
nothing to brag about. 

Just before midnight on January 6, police arrested seven people, including
25-year-old Simon Valenzuela, at a Chelsea storefront, confiscating
cocaine, heroin, guns, and 100 rounds of ammunition. Valenzuela had been
only one of two people paid wages by Lynn's campaign, hired "to do outreach
to people in the projects," according to campaign spokesman Howard Hemsley.
Sources say Valenzuela was introduced at a December meeting by his former
boss, Bronx state assemblyman Ruben Diaz Jr., as a Lynn campaign manager
and a link to Latino voters. Valenzuela left his job with Diaz Jr. to work
for Lynn, and appeared at forums with the candidate. 

Valenzuela was busted at an import-export cigar store his deceased father
ran at 280 West 19th Street, near Eighth Avenue, and had the store keys
when arrested. A criminal complaint charges him with possession of
controlled substances, four counts of weapons possession, and three counts
of criminally using drug paraphernalia. Among the items found variously on
shelves and in open safes were a semiautomatic handgun loaded with six
rounds, a loaded .32 caliber revolver, a pistol-grip shotgun, narcotics,
and drug-processing paraphernalia. 

Valenzuela pleaded not guilty and is out on bail. He was arrested along
with his 19-year-old brother, who admitted to police that he sold cocaine
and guns. Hemsley says that admission means the arrest is "not a problem"
for Lynn's campaign. In 1992, Valenzuela pleaded guilty to harassment
charges in a sealed case; in 1998, he was convicted for drunk driving. 

Valenzuela's attorney, Edward Wilford, said his client "would be completely
exonerated" but would not say why, nor would he discuss Valenzuela's
relationship with Lynn. "Chris Lynn has been a lightning rod for a lot of
different things and I just don't want that negative impact on my client's

Valenzuela lives just down the street from the storefront, at 264 West
19th. That's the address where Lynn's campaign sent Valenzuela a check for
$1200 in wages on November 30, according to campaign finance records.
Hemsley said by the time of the bust Valenzuela's monthlong stint with Lynn
was over. 

It's not the first time Lynn has been in the company of drug dealers. In
1996, when he was commissioner of the city's Taxi and Limousine Commission,
newspapers reported that he had represented some of Brooklyn's most
murderous crack dealers while working as a criminal defense attorney in the
late 1980s. In trying some of those dealers, federal prosecutors called
Lynn "house counsel" to a drug gang, though a judge ultimately rejected
that argument. Lynn told the Daily News, "I represented people accused of
all sorts of crime. That's your job when you're an attorney." 

In June 1996, Giuliani appointed Lynn commissioner of the Department of
Transportation (DOT); in June 1997, Lynn named his former driver, Ernst
Bonny, to head DOT security. Bonny was then facing charges of impersonating
a police officer and displaying a gun to a deli worker. Lynn said he
thought the charges had been cleared. In July 1997, Bonny pleaded guilty to
the impersonation charge. 

By the end of Giuliani's first term, the mayor bounced Lynn from his
cabinet and set him up in a job as one of several commissioners on the Tax
Appeals Tribunal. Lynn, 48, is now on leave from that post as he seeks to
fill the council seat vacated by Tom Duane, who was elected in November to
the state senate. 

In a field of five candidates, Lynn is considered a front-runner along with
Christine Quinn, a former Duane aide who headed the Gay and Lesbian
Anti-Violence Project. Carlos Manzano is expected to pull heavily in
Clinton and Hell's Kitchen, since he is backed by the powerful McManus
Democratic club, but his base does not reach into the district's heart in
the West Village and Chelsea. 

Housing issues will be central to the race, and some of Lynn's friendships
are troubling tenants. The candidate describes former Lower East Side
councilmember Antonio Pagan as a "dear friend," but tenants see him as a
shill for landlords. Pagan has backed another Lynn pal, Donald Capoccia,
whose firm has been selected by the city to develop former community
gardens on the Lower East Side into middle-income townhouses. 

Some West Side voters have viewed suspiciously Lynn's suggestion that
middle-income housing be built in the district, wondering if he intends to
reward his friend. But Lynn told the Voice that Capoccia, whom he describes
as "family," is "too small" to implement Lynn's vision of 30,000 to 70,000
units of new middle-income housing. He says he sees no need for more
low-income housing in the district. 

Also controversial is Lynn's 1995 letter to an SRO tenant in which he
referred to his acquaintance with one of the city's most notorious landlord
teams, Robert Sigmund and Thomas Iveli. Lynn wrote the letter after seeing
the visibly sick HIV-positive Sigmund-Iveli tenant on television describing
the bad conditions in his apartment. Duane, a councilmember at the time,
also appeared with the tenant. Lynn wrote to the tenant, "Since I know
Tommy Ivelli [sic], I called him. You're gay, Tommy's gay, and I have been
an activist for over 20 years." He then offered to come over with Capoccia
to make the necessary repairs, and warned, "Don't call sister Duane, all
she's interested in is publicity." 

Lynn calls the missive "a private letter sent by one gay man to another.
This is really not a campaign issue. It's a smear," said Lynn, who blames
Quinn for circulating the letter. (The Voice did not get the letter from
Quinn or her campaign.) Lynn told the Voice that he had met Iveli 20 years
ago, but has no relationship with him and does not know Sigmund. The
tenant, who has moved to Florida, did not take up the offer, which Lynn
describes as a "mitzvah." But in a district where posters denouncing
Sigmund and Iveli still adorn windows, the mitzvah could translate into a
mistake at the polls. 

Sigmund and Iveli's egregious reign on West 22nd Street has won them
headlines like "Landlords from Hell" and repeated standing on lists of the
city's worst slumlords. In 1996, Sigmund was sentenced to two months in
jail for attacking a photographer with a chair. The pair still face charges
from a state housing agency that they allowed drugs and prostitution to
overrun their buildings, failed to make even the most minimal repairs, and
retaliated against tenants who complained. Iveli did not return calls. 

Lynn agrees the landlords are problematic. "They have operated on the cheap
for years," says Lynn. "If they can't make repairs, they should get out of
the business." 


By Kenny Schaeffer, Met Council Tenant/Inquilino

On Nov. 6, state judge Edward Lehner ruled that the state's 1997 weakening
of eviction protections was not absolutely unconstitutional, but may be
unconstitutional as applied in particular cases.

Tenant groups had filed a lawsuit challenging the constitutionality of the
1997 "rent deposit" law, several amendments to the state's eviction law
that appear to limit the power of Housing Court judges to stop scheduled
evictions or adjourn cases when tenants are sued for alleged nonpayment of
rent, unless the tenants deposit the amount of money in dispute into court.

Justice Lehner based his ruling in part on concessions by attorneys from
the state attorney general's office and the Rent Stabilization Association
(RSA) that Housing Court judges still have the power to cancel scheduled
evictions, or grant adjournments of trials for "good cause"-which may
include illness or delay in obtaining benefits.

At issue are two changes in the statute which governs eviction cases, known
as the Real Property Actions and Proceedings Law (RPAPL) which were
demanded by the Republicans in Albany in 1997 and accepted by the
Democratic Assembly as part of the price of renewing the rent-stabilization
law. One provision, RPAPL 747-a, appears to deprive Housing Court judges of
the power to stop a scheduled eviction by signing an "Order to Show Cause"
which directs the city marshal not to carry out the eviction until the
court has had an opportunity to hold a hearing on whether there is a valid
reason to stop it. Judges are presented with more than 100,000 Orders to
Show Cause each year. They enable tens of thousands of people to avoid
eviction by showing that they don't owe some or all of the rent their
landlord claims, and by quickly coming up with what they do owe. This law
would prevent judges from issuing such orders unless the tenant already has
the entire amount of rent claimed.

The other provision, RPAPL 745-a, states that a judge cannot adjourn the
trial of an eviction case that has already been adjourned once before at
the tenant's request or is more than 30 days old, unless the tenant can
deposit into court all of the rent which has become due since the case
began. Tenants frequently need time to get an attorney, obtain documents to
prove their case, or simply to familiarize themselves with housing law.

Terrorist Attack?

The provisions have the harshest impact on families whose income has been
interrupted due to loss of employment, termination of unemployment
insurance, or wrongful denial or delay in receiving public assistance.
(Wrongful delay and denial of public assistance to needy families has
become a widespread and semi-intentional abuse under the Giuliani regime.
The mayor has described this as "the cutting edge of welfare reform.")

Sections 745(2) and 747-a took effect on October 20, 1997. The lawsuit,
called Lang v. Pataki, was brought soon afterwards by Legal Services and
Legal Aid attorneys on behalf of Met Council, the City-Wide Task Force on
Housing Court, and other housing advocates. For many months, landlords
rarely even asked judges to apply the new law. The RSA warned its members
that the law could be overturned by the courts or legislature if its
consequences were seen.

In an earlier preliminary ruling, Justice Lehner had indicated that some
provisions of the 1997 law appear to violate the constitutional separation
of legislative and judicial branches of the government by dictating how
judges must conduct cases, as well as interfering with the due-process
rights of tenants not to be evicted without a chance to have their claims

In declining to strike the entire statute as unconstitutional, Justice
Lehner relied on an agreement between state Attorney General Dennis Vacco's
office and the RSA that under a different section of the law, RPAPL 749(3),
the court still has a "fail safe" ability to stop an eviction for good
cause shown without a deposit of the disputed money. Justice Lehner also
found that Housing Court judges will have the ability to determine that the
provisions of 745(2) and 747-a are unconstitutional as applied to the facts
of a particular case, and to disregard them.

"An Important Victory"

For that reason, the pro-tenant attorneys on the case described the
decision as "an important victory." Justice Lehner's decision provides room
for Housing Court judges to continue to assert their legal authority to
adjourn cases and stop evictions when they believe the interests of justice
so require, exactly as they did before the 1997 law. However, it remains to
be seen how often Housing Court judges will actually do so.

Moreover, the position of tenants in Housing Court even without these
provisions is pretty dismal. Nine-tenths of tenants facing eviction don't
have legal representation, while 98% of landlords do. There were 25,000
evictions in 1997.

A recent reorganization of Housing Court by state Chief Judge Judith Kaye
has speeded up the eviction process by eliminating the "calendar part,"
where cases used to start, and immediately placing tenants before
"resolution parts" where most unrepresented tenants are pressured to sign
unfavorable agreements the first day they go to court, before most of them
have a chance to learn that they have the right to raise defenses such as
hazardous conditions in their apartment.

This sorry state of affairs was confirmed in a study by the Fund for Modern
Courts reported in the New York Law Journal on Nov. 4, which also
criticized the "rude and unhelpful conduct" of court clerks and court
officers. Many advocates believe that the number of evictions in 1998 may
rise to 30,000 families, due to a combination of this Housing Court
speedup, the Giuliani welfare cuts, and the 1997 rent law's weakening of
eviction protections, restrictions on challenges to rent overcharges, and
huge vacancy increases that encourage landlords to displace tenants.

"Left-Wing" Housing Judges?

Yet the real-estate industry continues to push to make Housing Court even
more of a rubber stamp for evictions. Mayor Giuliani has been pressing for
the right to appoint Housing Court judges, claiming that the current
judges, appointed by the Administrative Judge, are "left-wing" and
asserting that most of them are former tenant attorneys, a blatant lie.
(Far more housing judges are former government lawyers, landlord lawyers or
judges' law assistants. What actually motivates landlords' hostility to
Housing Court is that New York State has many strong rent and eviction laws
designed to keep tenants in their homes when possible.)

That campaign hit a new low on Dec. 3, when the state legislature enacted
substantial pay raises for itself and for every judge in the state except
New York City Housing Court judges. This unequal treatment was ostensibly
imposed because Housing Court judges are only hearing officers, not real
judges, but according to legislative and court officials cited in the Dec.
4 Law Journal, the move was actually taken by State Senate leader Joe Bruno
to reflect the real-estate lobby's desire to pressure housing judges to
issue more favorable decisions.

Justice Lehner's decision leaves the future interpretation of 747-a and
747(2) to be played out on a case-by-case basis, where most tenants will
continue to lack legal representation and will be unable to articulate the
complicated arguments involved. For this reason, the plaintiffs in Lang v.
Pataki are considering an appeal. They may seek a determination that the
statute's broad restrictions on Housing Court judges' ability to stop
evictions in the interests of justice are indeed unconstitutional.

Tenants with eviction cases in Housing Court should call Met Council's
tenant helpline, (212) 693-0550, Monday-Wednesday-Friday between 1:30 and 5
PM. We are interested in hearing from people who have been affected by
RPAPL 745(2) or 747-a. Send a brief description, including any court
orders, to Met Council, 102 Fulton St., New York, NY 10038.


by Madeline Lee Bryer, Met Council Tenant/Inquilino

The day before Thanksgiving, the state’s highest court restored to tenants
the ability to successfully sue their landlords for inadequate security.
The main legal issue at stake in the three cases the Court of Appeals
decided was how much owners can be held responsible for crimes committed in
their buildings. Since the 1960s, landlords have been held responsible to
injured tenants if security is inadequate. But to win a lawsuit, the tenant
has to prove that the criminal did not belong in the building. Obviously,
if the criminal was another tenant or somebody lawfully invited into the
building, the adequacy of the building security would not matter, because
the person had a right to be there. If the tenant can show that the person
did not belong in the building, but gained access because of a broken lock
or other negligent maintenance, then the landlord can be held responsible.
It has always been up to the tenant to prove that the criminal did not
belong in the building. Tenants have been able to prove this either
directly or circumstantially. Direct proof would be, for example, that the
criminal was apprehended and known to neither live in the building nor be
visiting. Circumstantial evidence could be that the tenant had lived in the
building for a long time and knew their neighbors and their guests, and the
criminal fit in neither group. It would be up to a jury to decide whether
this proof was sufficient.

Over the past five years, however, the state’s lower courts—trial courts
and the Appellate Division—have been dismissing lawsuits where the tenant
relied on circumstantial evidence. In one of the cases decided by the Court
of Appeals, Burgos v. Aqueduct Realty, the tenant had been beaten and
robbed in her apartment by two unidentified men. Her building had no
working locks on the entrance doors. The lower courts dismissed her case
because she was unable to identify her assailants as uninvited strangers in
the building.

In another case, Gomez v. New York City Housing Authority, the lower courts
dismissed a 12-year-old tenant’s case on the grounds that her
testimony—that she had never seen her attacker before, and that he made no
effort to conceal his identity and fled the building—was insufficient to
prove that he did not belong there.

The Court of Appeals reversed the dismissals in both the Gomez and the
Burgos cases. “Because victims of criminal assaults often cannot identify
their attackers,” Chief Justice Judith Kaye wrote, “a blanket rule
precluding recovery whenever the attacker remains unidentified would place
an impossible burden on tenants.”

Regrettably, however, in the third case, Price v. New York City Housing
Authority, the Court of Appeals decided that in a negligent-security case
involving a serial rapist, it was permissible for a jury to hear “expert”
testimony from a “criminal profiler” that “nothing could have stopped the
rapist” and to hear testimony from another alleged victim who said she was
attacked even though her building had a lock.

In Price, the plaintiff was a 17-year-old tenant at the Lincoln Houses in
Harlem who was raped in her building. While the Housing Authority admitted
that the rapist was an intruder and that its failure to have a lock on the
entrance door was negligent, it argued that even if there had been a lock,
the rapist would have attacked the tenant anyway. The profiler was a
partner in a self-described behavioral-science consulting firm made up of
four retired FBI agents. He was permitted to testify beyond his training in
analyzing information about suspects, and told the court that he could get
inside the mind of the rapist and judge his future actions. This expert had
no training in psychology or the behavioral sciences.

The court also allowed the judge to instruct the jury that if they were
going to find in the tenant’s favor, they had to rule out any possibility
that the assailant could have gotten into the building in some way other
than through the open door.

While the Price decision casts a serious cloud over the Burgos and Gomez
cases, these recent rulings go far in restoring an even playing field
between the rights of tenants and the duties of landlords.

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