[NYtenants-online] Tenant Pioneer Jane Wood passes away

[Tenant]

NYtenants Online/TenantNet                                3/22/04
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IN THIS ISSUE ...

1. Jane Wood passes away, a pioneer in tenant advocacy
2. Landlord Lawyer Burden slapped by Disciplinary Committee
3. Larry Wolf on the Gong Show

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JANE WOOD, 96, TENANT ACTIVIST, IS DEAD
By DAVID W. CHEN
NY Times
March 19, 2004

Jane Wood, a longtime tenant advocate and political radical in New York who 
once pressured her landlord to replace a broken elevator by sleeping on an 
air mattress in the lobby, died on Wednesday at her apartment in Manhattan. 
She was 96.

Ms. Wood died from respiratory complications stemming from a fall last 
month in which she fractured a rib, said her stepson, Timothy Wood.

Considered a giant in the tenants' rights movement, Ms. Wood was credited 
by housing advocates for helping to prevent the eviction of hundreds, if 
not thousands, of tenants, as her Chelsea neighborhood became gentrified. 
She was the founder of the Chelsea Coalition on Housing, an advocacy group 
for low-income tenants, and could always deliver a rousing speech at tenant 
protests, Rent Guidelines Board meetings or neighborhood rallies.

Ms. Wood was one of the last of a breed of activists whose socialist 
sensibilities were shaped by the Depression, though not through personal 
deprivation. Ms. Wood was born into a family of means, a world she 
eventually rejected to help the downtrodden.

Born Janet Kauffman in 1907, Ms. Wood grew up in St. Louis as the only 
child of Harold M. Kauffman, a wealthy banker, and Jeanette Morton, a 
socialite and Mayflower descendant. She was related to the Davis family, 
the namesake of the Davis Cup of tennis. And while Ms. Wood attended Smith 
College, her sorority mentor was Anne Morrow, the writer who later married 
Charles A. Lindbergh, her stepson said.

After moving to New York City in the 1930's, Ms. Wood became active in 
socialist causes and tried to help the poor. "She felt that what she saw 
was terrible, and she felt that she had to do something for those less 
fortunate," Mr. Wood said.

In the 1940's, she married Robert Wood, a fellow activist, who later opened 
a business importing cigars. He died in 1963. Ms. Wood is survived by her 
stepson and a stepdaughter, Sara Gearry, of Coeburn, Va.

Because of her husband's cigar business, Ms. Wood traveled to Cuba. She 
made numerous trips there after the embargo was imposed, ferrying medical 
supplies and other goods. She met Fidel Castro as well, and to the end 
praised his communist regime, said Kernan Huttick, treasurer and tenant 
organizer with the Chelsea Coalition on Housing.

Ms. Wood founded the Chelsea group in the 1950's after protesting plans to 
build the Penn Station South housing development, a middle-income 
cooperative. The complex ultimately went up, but Ms. Wood helped ensure 
that the low-income workers who lost their homes were given priority in the 
new housing.

In the 1990's, one of Ms. Wood's notable fights involved the eviction of 
several women living at Leo House, a women's residence affiliated with 
Catholic Charities. Though Leo House ultimately won the fight, the 
evictions were stalled for several years.

In 2001, Ms. Wood staged what may have been her most colorful protest: 
sleeping in the lobby of her apartment building to pressure the landlord to 
hasten the replacement of the elevator, which at that point had been out of 
service for months. She installed an air mattress in the lobby and went to 
bed there in a nightgown and nightcap.

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LANDLORD ATTORNEY SLAPPED BY DISCIPLINARY COMMITTEE

Joseph Burden, a partner with Belkin Burden Wenig & Goldman, LLP, is one of 
NYC's most notorious landlord lawyers, was recently suspended from practice 
in New York State for three months for "conduct involving dishonesty, 
fraud, deceit or misrepresentation." Unfortunately we see this sort of 
behavior from landlord lawyers all too often, and it's very rare that any 
action is taken.

The decision by the NY State Appellate Division, follows:

Decided on February 17, 2004

SUPREME COURT, APPELLATE DIVISION
First Judicial Department
Peter Tom,Justice Presiding,
David B. Saxe
Joseph P. Sullivan
Alfred D. Lerner
David Friedman,Justices.
M-4577

In the Matter of Joseph Burden, an attorney and counselor-at-law: 
Departmental Disciplinary Committee for the First Judicial Department, 
Petitioner, Joseph Burden, Esq., Respondent.

Discplinary proceedings instituted by the Departmental Disciplinary 
Committee for the First Judicial Department. Respondent was admitted to the 
Bar of the State of New York at a Term of the Appellate Division of the 
Supreme Court for the Fourth Judicial Department on March 7, 1975. James T. 
Shed, of counsel (Thomas J. Cahill, Chief Counsel) for petitioner. Michael 
S. Ross for respondent. M-4577 - October 31, 2003 IN THE MATTER OF JOSEPH 
BURDEN, AN ATTORNEY

PER CURIAM

Respondent Joseph Burden was admitted to the practice of law in the State 
of New York by the Fourth Judicial Department on March 7, 1975, and, at all 
times relevant to this proceeding, has maintained an office for the 
practice of law within this Department.

On August 13, 2002, the Departmental Disciplinary Committee (Committee) 
served respondent with a notice and statement of charges containing 11 
counts alleging that respondent violated DR 1-102(A)(4) [conduct involving 
dishonesty, fraud, deceit or misrepresentation]; DR 1-102(A)(5) [engaging 
in conduct prejudicial to the administration of justice]; and DR 
1-102(A)(7) [conduct that adversely reflects on the lawyer's fitness as a 
lawyer] of the Code of Professional Responsibility.

These charges arose out of respondent's abuse of trial subpoenas he issued 
in a special proceeding pending in Housing Court. In particular, 
respondent, as landlord's counsel, issued various trial subpoenas to third 
parties seeking the financial and medical records of a tenant without 
complying with CPLR 408. CPLR 408 requires, in pertinent part, leave of 
court for such discovery in a special proceeding and further requires that 
these subpoenaed documents be delivered directly to the court and made 
available only after a court's express approval.

Previously, the Housing Court denied respondent's request for certain 
information it had deemed private and unavailable. Using letter requests, 
respondent improperly urged that the subpoenaed documents be sent directly 
to him rather than the court, subverting the court's procedure for 
receiving, maintaining and releasing subpoenaed records. Upon learning of 
respondent's abuse of the trial subpoenas, counsel for the tenant moved to 
quash and for sanctions. Respondent submitted an affirmation in response 
falsely claiming that the subpoenaed documents were sent to his office 
without solicitation or suggestion by him. In its decision, the Housing 
Court found that respondent's use of the subpoenas was an abuse of process 
and that respondent had made a false statement to the court. Accordingly, 
the subpoenas were quashed, respondent sanctioned in the amount of $1,000 
and the matter referred to the Committee.

In response to the Committee's letter regarding the matter, respondent 
again falsely stated that the subject subpoenas were voluntarily sent to 
his office without his urging. In his answer to the Committee's formal 
charges and in a pre-hearing stipulation, however, respondent later 
acknowledged violating Disciplinary Rules in connection with each of the 11 
counts of the charges. At the hearing held before a Referee, the Committee 
recommended a one-year suspension and respondent urged a public censure. 
The Referee subsequently sustained all 11 counts and recommended a 
three-month suspension with automatic reinstatement after the suspension. A 
Hearing Panel unanimously agreed with the Referee's report and the 
recommended sanction.

The Committee now petitions this Court for an order pursuant to 22 NYCRR 
603.4(d) and 605.15 (e)(2), confirming the determination of the Hearing 
Panel, and suspending respondent from the practice of law for a period of 
three months.

Inasmuch as respondent had admitted and stipulated to violating 
Disciplinary Rules in connection with each of the 11 counts of the 
Committee's charges, which were independently supported by the evidence 
adduced at the hearing, the petition should be granted. We find that 
respondent's misconduct was a deliberate circumvention of the Housing 
Court's rules and procedures by soliciting and obtaining documents by the 
abuse of judicial subpoenas. Further, we find that respondent's false 
statements to the Housing Court and to the Committee were calculated to 
conceal respondent's unethical behavior. Under these circumstances, 
respondent's suspension for a period of three months is warranted.

Accordingly, the Committee's petition should be granted and the 
determination of the Hearing Panel should be confirmed to the extent of 
suspending respondent from the practice of law in the State of New York for 
a period of three months and to be reinstated pursuant to 22 NYCRR 603.14 
(a)(1).
All concur.
Order filed.
(February 17, 2004)

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LARRY WOLF'S INTIMIDATION TACTICS CATCH UP WITH HIM
decision from NY Law Journal, 03/09/2004
by Housing Court

The following is the text of a decision from NYC Housing Court, where 
landlord attorney Lawrence Wolf was challenged for his use of illegal 
Backdoor Subpoenas. Jamie Fishman, of the firm Fishman & Neil, represented 
the tenant. Considered by some as one of the most pathetic examples of the 
legal profession, Wolf is seen as the in-house counsel for notorious 
landlord Lloyd Goldman, but more likely considered as "Giggle Test Larry." 
Getting a front-row seat to watch his antics is, in itself, probably a 
justification for rent withholding.

Civil Court
Housing Part A

Judge Schreiber

Petitioner commenced this holdover proceeding against the executor of the 
estate of Robert Mooney claiming the estate illegally sublet or assigned 
the rent stabilized subject premises to under-respondent Frank Garcia. Mr. 
Garcia is the only respondent who has appeared in the case. On October 9, 
2002 he served a written answer in which he asserts succession rights to 
the subject premises as a non-traditional family member under Rent 
Stabilization Code ("RSC") §§2523.5(b) and 2520.6(o)(2) because he lived 
with the deceased prime tenant, Robert Mooney, as his domestic partner for 
more than two years prior to Mr. Mooney's death. The answer included a 
demand for a jury trial. The case was marked off calendar on March 24, 2003 
pending document production and a deposition of Mr. Garcia. The discovery 
was concluded and on November 3, 2003, pursuant to a stipulation, the case 
was restored to the calendar; the answer was amended only to the extent of 
including an affirmative defense and counterclaim for breach of warranty of 
habitability. The petitioner moved to strike the jury demand and for 
outstanding use and occupancy; the motion was denied on December 8, 2003 as 
petitioner failed to appear after checking in to the Part.

On January 9, 2004 respondent moved for an order requiring petitioner to 
identify and produce all of the subpoenas it issued, quashing three 
subpoenas known to have been issued, quashing any additional subpoenas 
issued by petitioner which may be improper, directing petitioner's counsel 
to produce the original of any document received in response to the 
improper subpoenas, staying issuance of any further improper subpoenas, 
suppressing all information obtained directly in response to any improper 
subpoena, and awarding costs and attorney's fees pursuant to 22 NYCRR Part 
130-1.1(a) based on frivolous conduct. Petitioner cross-moved to strike the 
jury demand and for outstanding use and occupancy.

Respondent states that he discovered that petitioner's counsel, Lawrence 
Wolf ("Mr. Wolf"), issued three non-party subpoena duces tecum which state, 
"[m]ake telephone inquiries to Virna Maldonado if you wish to provide 
required information and not have to appear in Court (212) 557-6700." 
According to respondent, Ms. Maldonado is Mr. Wolf's secretary; the 
telephone number referred to in the subpoenas is Mr. Wolf's office. The 
subpoenas were issued to Verizon-New York, Consolidated Edison and the 
Department of the Aging. The subpoena to the Department of the Aging was 
"so ordered" by this Court with a directive that, "a copy of this subpoena 
is to be served on respondent's counsel within 48 hours of service on the 
Dept. of Aging."

Respondent's counsel states he was never served with a copy of the 
Department of the Aging subpoena as ordered by this Court. He states that 
he first discovered the subpoenas on January 7, 2004 when Mr. Garcia 
received a letter addressed to Mr. Mooney from Verizon regarding the 
subpoena issued to it. Subsequently, he learned from the court clerk on 
January 8, 2004 of the two other subpoenas for Consolidated Edison and the 
Department of the Aging. Respondent's counsel argues that issuance of these 
subpoenas, which direct the delivery of evidentiary materials to 
petitioner's attorney's office, and not to the Court as required pursuant 
to CPLR §2301, constitutes "back door discovery" which has been condemned 
by both lower and appellate courts. See, e.g., Henriques v. Boitano, 
10/27/99 NYLJ 27: 3 (Civ. Ct. NY Cty), aff'd 8/29/00 NYLJ 22: 2 (AT 1st 
Dep't) mod as to fees 2003 NY Slip Op 13347 (AD 1st Dep't).

A subpoena duces tecum may be issued by an attorney "to compel the 
production of specific documents that are relevant and material to facts at 
issue in a pending judicial proceeding." Matter of Terry D., 81 N.Y.2d 
1042, 1044 (1993). However, "[a] trial subpoena may not be used as a 
'fishing expedition' to obtain materials that could have been obtained in 
pretrial disclosure," Mestel & Co. v. Smythe Masterson & Judd, 215 A.D.2d 
329 (1st Dep't 1995), nor should it be used as a substitute for discovery 
or "to ascertain the existence of evidence." Matter of Terry D., 81 N.Y.2d 
at 1044. Disclosure in summary proceedings is further limited pursuant to 
CPLR §408 by the need to obtain leave of Court.

Service requirements for subpoenas duces tecum are found in Articles 23 
(Subpoenas, Oaths and Affirmations) and 31 (Disclosure) of the CPLR. In a 
summary proceeding, after obtaining leave of Court, CPLR §3120(3) states 
that a party issuing a subpoena duces tecum to another party or any other 
person[1] shall at the same time serve a copy of the subpoena upon all 
other parties and, within five days of compliance, give to each party 
notice that the items produced are available for inspection and copying, 
specifying the time and place. CPLR §2301 allows an attorney of record for 
a party to issue a subpoena duces tecum requiring the production of 
documents in Court for trial. Effective January 1, 2004, CPLR §2303(a), 
like CPLR 3120(3), requires service of a subpoena duces tecum "on each 
party who has appeared in the action so that it is received by such parties 
promptly after service on the witness and before he production of books, 
papers or other things."

In Henriques v. Boitano, 10/27/99 NYLJ 27: 3 (Civ. Ct. NY Cty), aff'd 
8/29/00 NYLJ 22: 2 (AT 1st Dep't) mod as to fees 2003 NY Slip Op 13347 (AD 
1st Dep't), petitioner's counsel issued, without notice to respondents, 
subpoenas duces tecum indicating that the information could be sent 
directly to the office of counsel for the petitioner in order to obviate 
the need for an appearance in court. The Appellate Term held that the 
subpoenas were improper due, inter alia, to the inclusion of "cover letters 
which, as the motion court accurately described, were 'calculated to yield 
a turnover of documents directly to Petitioner's counsel'." The Court 
further found that suppression of the information obtained was appropriate 
since the course followed by the attorney was at "variance with acceptable 
discovery practice." (Quoting Matter of Beiny, 129 A.D.2d 126, 133 (1st 
Dep't 1987), lv dism 71 N.Y.2d 994.) In addition, it upheld the propriety 
of sanctions for the conduct which it agreed was frivolous.

Here, petitioner issued three subpoenas on non-parties and failed to serve 
a copy of the subpoenas on the respondent's counsel. Not only were the 
subpoenas not served on all parties, but in addition they contained 
improper language suggesting that the witnesses could bypass a court 
appearance and merely supply information to petitioner's counsel. Finally, 
the subpoena on the Department of the Aging was signed by this Court with a 
directive that petitioner serve the subpoena on respondent's counsel within 
forty-eight hours of service on the Department of the Aging.[2] Petitioner 
failed to comply with that order.

In opposition to the motion Mr. Wolf states that he is aware that discovery 
in summary proceedings must be on notice to his adversary but asserts that 
this is not true for issuance of trial subpoenas. It appears Mr. Wolf may 
not have been aware of the revised provisions of the CPLR noted above. Even 
before the revisions however, a motion was required, on notice to all 
parties, prior to service of a subpoena on a nonparty. Assuming Mr. Wolf 
was unaware of CPLR §§3120(3) or 2303(a), he has not presented any excuse 
for his failure to serve respondent's counsel with a copy of the subpoena 
on the Department of the Aging, despite this Court's direction.

Mr. Wolf claims that after his adversary contacted him regarding the 
language in the subpoenas suggesting a manner in which to avoid a court 
appearance, he wrote to the subpoenaed parties and informed them that they 
should ignore that portion of the subpoenas. The opposition papers do not 
include either a statement from Mr. Wolf or an affidavit from his 
secretary, Ms. Maldonado, stating whether any documents or information was 
received from those subpoenaed.

Based on the foregoing, the respondent's request to quash the subpoenas on 
Consolidated Edison, Verizon New York and the Department of the Aging is 
granted. However, as to the remaining relief sought by respondent the 
motion is granted to the extent of ordering a hearing on February 11, 2004, 
Pt. A at 3 p.m. Mr. Wolf and his secretary should be prepared to testify 
regarding issuance of any other subpoenas, documents received in response 
to the subpoenas, and whether any materials received were copied; they 
should bring to Court copies of each subpoena, any material received, and 
all copies of those materials. Whether any information obtained should be 
suppressed will be determined after the hearing. Finally, respondent's 
request for an award of costs and attorney's fees pursuant to 22 NYCRR Part 
130-1.1(a) is granted as the conduct of Mr. Wolf was without basis in law 
and therefore frivolous. The hearing will also address the appropriate 
amount of fees and costs.

Petitioner's notice of cross motion seeks payment of use and occupancy. 
However, the affirmation in support is silent with respect to what is owed 
and petitioner fails to include an affidavit from someone with personal 
knowledge regarding the alleged outstanding use and occupancy. As the issue 
is raised only in the notice of motion and lacks any support, the motion is 
denied.

The cross-motion also seeks to strike the jury demand. Petitioner claims 
that Mr. Garcia cannot demand a trial by jury because Robert Mooney's 1971 
lease contains a jury waiver clause and since Garcia asserts succession 
rights he is bound by the lease terms. In opposition respondent argues that 
petitioner waived its right to object to the jury demand since it failed to 
move for such relief until thirteen months after the filing of the answer. 
Specifically, he argues that the matter has appeared on the calendar on 
numerous occasions and petitioner never once raised the issue. On November 
3, 2003 petitioner even signed a stipulation agreeing to allow respondent 
to amend his answer which again included the jury demand.

This Court need not address the issue of whether petitioner waived its 
right to object to the jury demand, although it is noted that undue delay 
may constitute waiver. See e.g., 55th Management Corp. v. Goldman, 2001 NY 
Slip Op 40606U (AT 1st Dep't); Cantor v. 255 West 15th Holding Corp., 28 
Misc.2d 503 (AT 1st Dep't 1960). The jury waiver clause in the original 
lease cannot prevent a demand for a jury trial because at the time the 
parties signed the lease in 1971 definitions of non-traditional family and 
succession rights in RSC §§2520.6(o)(2) and 2523.5(b) had not yet been 
enacted. Therefore, when the parties signed the lease they could not have 
effectuated a knowing waiver of their right to a jury trial on this issue. 
500 West End LLC v. Merkin, 4/26/00 NYLJ 28:4 (Civ. Ct. Ny Cty); Klipack v. 
Raymar Novelties, 273 A.D. 54 (1st Dep't 1947). Accordingly, petitioner's 
request to strike the jury demand is denied.

This constitutes the decision and order of the court, copies of which are 
being mailed by the Court to the attorneys below.

FootNotes:

[1] Prior to September 1, 2003, CPLR §3120(2)(b) required a motion on 
notice to all adverse parties in order to obtain discovery and production 
of documents as against a non-party; the non-party had to be served with 
the request in the same manner as a summons. After September 1, 2003, the 
requirement in paragraph 2(b) was replaced by subdivision (3).

[2] Although the subpoena was signed by the Court on December 16, 2003, the 
court required this service as a result of CPLR §2303(a) (effective January 
1, 2004) since the return date on the subpoena was January 28, 2004.