Sale of Eviction Data Causes 'Irreparable Harm,' Says Judge

[TenantNet]

Sale of Eviction Data Causes 'Irreparable Harm,' Says Judge
NY Law Journal
By Mark Fass
July 12, 2007

A Manhattan judge has enjoined a landlord from commencing an eviction proceeding in Housing Court, citing the court's practice of selling eviction-case data to "tenant-screening bureaus" that blacklist prospective tenants.

"[T]his Court finds that plaintiff has demonstrated she will suffer irreparable harm if the injunctive relief sought is not granted," Supreme Court Justice Barbara R. Kapnick wrote in Weisent v. Subaqua Corp., 102108/07.

The decision will be published Tuesday.

Plaintiff Dawn Weisent initiated an action for declaratory judgment against landlord Subaqua Corp. seeking a declaration that she is entitled to succeed as a "non-traditional family member" to the tenancy of her late partner's rent-stabilized apartment. Ms. Weisent and Raft Cooper were involved in a long-term relationship but never married, according to Ms. Weisent's attorney.

Ms. Weisent also moved for a preliminary injunction barring Subaqua from commencing a summary eviction proceeding against her in Housing Court, asserting she would suffer "irreparable harm."

Namely, Ms. Weisent claimed she feared being blacklisted by future potential landlords. As Justice Kapnick put it in her decision, "For some reason, it appears that [the Office of Court Administration] sells Housing Court eviction case data electronically to companies known as 'tenant screening bureaus' . . . who, in turn, use this data to prepare tenant screening reports which they then sell to other companies and to prospective landlords."

Justice Kapnick agreed that the practice constitutes "irreparable harm" and granted the preliminary injunction.

The court relied on a recent decision by Southern District Judge Lewis A. Kaplan, which approved a settlement in a class action by tenants against a prominent tenant-screening bureau, First American Registry. Judge Kaplan wrote in White v. First American Registry, 04 Civ. 1611, that the outcome of a Housing Court case does not necessarily prevent the matter from appearing as a black mark on a screening bureau's report (NYLJ, March 26, 2007).

The screening bureaus "have seized upon the ready and cheap availability of electronic records to create and market a product that can be, and probably is, used to victimize blameless individuals," Judge Kaplan wrote. "The problem is compounded by the fact that the information available . . . is sketchy in the best of cases and inaccurate and incomplete in the worst."

The data can be misleading because it provides abridged histories of cases. In one commonly cited example, the record of a tenant who withholds $10,000 in order to force a landlord to make repairs and who later secures a $9,000 abatement will show only the $1,000 judgment in the landlord's favor.

The New York County Lawyers' Association called for an end to the sale of Housing Court data in a report on Housing Court resources issued last week (NYLJ, July 5).

"The sale of electronic Housing Court data to [tenant screening bureaus] without any restrictions or regulation by OCA, impedes tenants' assertion of the warranty of habitability, and has a negative impact on preservation of the housing stock, a purpose for which Housing Court was established," the report opined.

James B. Fishman of Fishman & Neil represented Ms. Weisent, as well as the plaintiffs in White.

"I think [OCA is] starting to realize that providing electronic information is causing more harm" than good, Mr. Fishman said. "It's punishing people for doing what the Housing Court was set up for."

Edward G. Baer of Belkin Burden Wenig & Goldman represented Subaqua Corp.

Mr. Baer could not be reached for comment. His partner, Jeffrey L. Goldman, called the decision an untenable precedent.

"[Justice Kapnick] is obviously unhappy with OCA's policy, but the party being enjoined here is not OCA," Mr. Goldman said. "If the courts were to follow this kind of decision, which seems unlikely, there'd be broad policy implications. Housing Court would shut down."

OCA Spokesman David Bookstaver declined to comment on Justice Kapnick's decision, but said that "OCA has been re-examining the issue of selling Housing Court data."

[cestmoi123]

This is an absurd ruling. It's denying someone access to our legal system because of what another entirely disconnected party might choose to do based on the information that the first party found it necessary to enter the court system.

[TenantNet]

Showing your (true?) right-wing colors, eh?

[cestmoi123]

I hardly see how objecting to a ruling that denies a party access to the courts is "right-wing." Should we also bar the tenants at the Pinnacle properties from suing Pinnacle, on the basis that their suit, even if they lose, might make prospective tenants skeptical of living in a Pinnacle building. Prohibiting people from accessing the courts because that access could cause reputational harm to others is a terrible precendent.

[TenantNet]

That ts not what the decision says. Instead of reacting like a libertarian, understand that it does not prohibit the LL from using the court system altogether -- they can still go into Supreme Court; it's a question of irreparable harm and prejudice given the practice of OCA.

[cestmoi123]

It appears (from this summary) to be exactly what this decision says. The landlord was "enjoined...from commencing an eviction proceeding in Housing Court."

The landlord believes that the current occupant of an apartment has no legal right to be there, and hence commences eviction proceedings. Adjudicating that sort of dispute is what Housing Court is for.

The fact that other landlords might (fairly or unfairly) think less of the tenant because of the proceedings is no reason to prohibit the proceedings from going forward.

[TenantNet]

That's only housing court, not Supreme Court. LL still has legal remedy. You're thinking like a libertarian.

[Chimera]

I agree that this is an unfair ruling. Preventing a party from commencing an action because the parties will end up on a blacklist is ridiculous.

[TenantNet]

And as before, you're not listening or reading (are people just being dense today or what?) and you're mischaracterizing the decision. The LL is not prevented from using the legal system. They can go into Supreme Court.

More over, the relief sought (by Order to Show Cause) was for a preliminary injuction seeking to bar the LL from commencing a SUMMARY proceeding in Housing Court PENDING the case she commenced in Supreme Court. FYI, Summary and Plenary are two different types of proceedings (and the latter was not barred). It also has to do with pende lite ... pending the ongoing case, the LL was barred from starting his own case in a different court.

Here, the tenant has chosen her own forum (Supreme Ct) and done so before the LL started a housing court case seeking a declaratory ruling on her right to a RS tenancy (via succession). It's perfectly proper to seek such a declaratory ruling. And it's perfectly proper to seek not to be prejudiced by the ongoing procedures of Housing Court.

What's important to understand that the LL is not barred from Housing Court (or any court) at a later time, but only Housing Court while the instant Supreme Court case is ongoing.

In 25 years, it's one of the better and more cogent decisions I've seen.

So stop whining for the LL. Remember where you are.

[Chimera]

I am not "whining for the landlord" simply because I find a particular ruling (which happens to be in a landlord's favor) unfair. Why would you make such an assumption?

It is not the granting of the injunction that I take issue with but the reason behind it. Despite the fact that this case happened to be against a landlord, it also has the potential to harm tenants who may be seeking to evict wayward sublets or roommates in the future.

I appreciate most discussions on this forum but I find the insults/accusations in poor taste.

[TenantNet]

... because I find a particular ruling (which happens to be in a landlord's favor) unfair.

Ummm, the ruling was in the tenant's favor.

[Chimera]

I made a typo - my argument stands.

[TenantNet]

What argument? There is no argument. You haven't read the decision and you don't even know who won (or the reason why). You're reacting and not analyzing.

You don't know that this was a preliminary decision (for a preliminary injunction) on an Order to Show Cause and has absolutely nothing to do with the case in chief (although the Judge did aver to the likelihood of success of the tenant).

It also has to do with a favorite LL tactic which is forum shopping. If they don't like a judge in Supreme, they will run to housing (or the reverse).

And BTW, this is nothing new. A similar decision came in the Economakis case. See http://tenant.net/Court/Hcourt/index.html?x=1625 where the court said they can't rush to Housing Court without going through DHCR.

So of course you're whining for the LL.

[Chimera]

No, I have not read the decision and neither have you. It has not been published yet!

As I had stated before, my issue is with a party being denied access/motions due to the potential of another party being blacklisted. It is not the decision I take issue with, but the reason behind the decision. I'm sorry that this doesn't mesh well with your agenda, but it sets a bad precedent for everybody, in my opinion.

Economakis has nothing to do with the "irreparable harm" of being placed on a black list. May I ask why you are referring me to it?

I agree with cestmoi123 that denying a party access to any court due to the potential of harm to a party's reputation sets a very bad precedent.

[TenantNet]

No, I have not read the decision and neither have you. It has not been published yet!

Actually you're incorrect. I have read it and have a copy (and it has been published).

Your analysis is also incorrect. The LL is not denied access to the court system at all; he's precluded from forum shopping. He can continue the matter in Supreme Court or appeal the decision.

Among the tests to obtain a preliminary injunction are irreparable harm and likelihood of success. The tenant prevailed on both. This is well-settled law and sets no precedents. And if you bothered to read Economakis, you would understand. Yet you seem stuck on some notion that the LL is being denied access to the court system and that simply isn't true (Cestmoi is also incorrect). Nor do you seem to understand the difference between the various courts and how injunctive relief actually works. The injunction is pende lite and only applies to commencing a proceeding while the Supreme Court matter is pending.