NY City Councilmember Mark Levine explains his Bill 214 to CRDC
From Housing Court to the Streets
By DONATHAN SALKALN
As the number of existing affordable housing units in New York City continues its downward spiral toward homelessness, politicians and civic brain-trusts have come together in supporting a law to stem the flow. And, although, it seems much of the dyke has emptied, Bill 214 before the City Council, will give tenants facing eviction free legal counsel in the city's civil courts. This law will have a profound effect in retaining our city's remaining affordable housing, while protecting the tenants of future affordable units that are being built, that are in blueprint, or even in the Mayor's dreams.
"The present situation in housing court doesn't meet any reasonable standard of justice,” said NY City Councilmember Mark Levine, the bill’s sponsor, speaking at this past November’s CRDC Community Forum called “Access to Civil Court” at the Hudson Guild’s Elliott Center. “In the criminal arena everybody gets their attorney. In housing court there is no right to counsel,” said Levine. “And close to 90% of NYC tenants are on their own. On the other side, the landlords almost always have an attorney,” said Levine, adding that many unscrupulous landlords press for eviction even when they have no leg to stand on, and often drop their case when the tenant shows up with an attorney.
“The system is now approaching 30,000 tenant evictions a year, with maybe tens of thousands of additional instances where the tenants, under duress, leave their apartments midway during court proceedings,” Levin said, explaining that his bill would level the playing field between landlords and tenants by giving tenants free legal counsel.
Reasons for tenants walking away during the court proceedings include buyouts, immigration document fears, and even the over-all trauma of a date in a court room that includes pat downs at the entrance, suits, guards with guns, elite chatter in English, judges, stenographers, marble, mahogany wood, and nearby jails, etc, ect. Levine related instances where presiding judges wanted to calm down a tenant in court and tell them that the landlord was so—wrong, but couldn’t, as judges have to remain impartial, by law.
“The homeless crisis in New York City is very much an eviction crisis,” Councilmember Levine continued, “Record numbers, up to 58,000 New Yorkers, are filling up our homeless shelters a night, two thirds of which are families and 40% are children. The number one reason why they are all are winding up in homeless shelters is eviction. And if we can give tenants a fair shake in housing court and reduce eviction, we can make a serious dent in the homeless crisis.”
Access to US Civil Court Lags Behind Other Developed Nations
Also promoting the-right-to-counsel in NYC’s housing court was Andrew Shearer, NYU Law professor and Policy Director, Impact Center for Public Interest Law. He told the group that in 1963 the United States Supreme Court ruled that if someone was on trial and facing the possible loss of liberty, they were entitled to have the court to appoint counsel for them at no cost. “The Supreme Court had recognized the difficulty of navigating the courts without the expertise of an attorney,” Shearer said. “The expectation from the ruling was that it would eventually provide full access in civil matters in addition to criminal matters, but it never happened. In civil matters we essentially have a pay to play.”
Shearer pointed out that most of the developed world has a-right-to-counsel in civil matters, including most of the European Union, Canada, Australia, New Zealand, Brazil, and South Africa. According to the study by the World Justice Project of 99 countries ranked for providing access to justice, United States was ranked sixty-fifth.
“The American Bar Association is very supportive to the right to counsel and in 2006 it passed a resolution that said that States should move toward a-right-to-counsel in matters of fundamental human needs who would include housing, safety, health, and child custody,” Shearer said.
The Nuts and Bolts of Civil Court
Joanne Doroshow, Executive Director at Center for Justice & Democracy, and legal expert that often appears on WBAI, CNN, ABC, and Fox News gave the group an overview of Civil Court. “The Revolutionary War was fought over the right to a civil jury trial. We enshrined that right in the seventh amendment to the US Constitution.” Doroshow said, “The Civil Court is one of the only places in our government system where one can go up against a big company and hold them accountable.”
A civil action begins when a party to a dispute files a complaint in which they have incurred loss as a result of a defendant's actions, and demands a legal or equitable remedy.
Finding a lawyer: Law firms flood the airways with advertisements for free consultation. Doroshow adds that ""if you‘re hurt and you want to find an attorney, you can go to the New York [State] Bar Association or the New York State Trial Lawyers Association, both of which have resources to help you."
Contingency fee: "If you find an attorney to take your case this country has a contingency fee system which doesn't exist in most countries. Only if the lawyer wins the case do you pay the lawyer and his fee comes out of the judgment. This system screens out frivolous lawsuits because lawyers will not take a case that they don't think they will win.
Compensation: if you are hurt due to negligence you can sue for compensation. For example: a child was injured in a negligent birth and now has cerebral palsy, and the parents were able to settle with the negligent hospital and they got a certain amount of money to take care of that child.
Deterrence: the system functions to deter big corporations for repeating negligence when there are continual multiple claims practice guidelines are put in place. An example: anesthesiologists were being hit with multitudes of claims for negligence where people are being extremely hurt by bad practices. In order to stop these claims, they came up with practice guidelines to change completely the way anesthesiologists practice. The result was a tremendous drop in claims, anesthesiologists' insurance rates went way down, and fewer patients got hurt.
Disclosure of information: During the preliminary process there is a portion called discovery where both sides of a case finds out information concerning the other side's case. For example: "In a Ford Pinto case years ago, a fuel tank that was exploding when the Pinto car model was rear-ended. During discovery of the design flaw, documentation was found was found that Ford had made a cost benefit analysis to pay liability claims for burn deaths rather than spend $.11 a car to fix the fuel tank design."
Small Claims Court
State Supreme Court Justice Arthur Engoron, who wrote the book the "Small Claims Manual" gave instructions in how one would best represent themselves in small claim cases. “Unlike most law suits where you have a claimant and a defendant, In small claims court it's just the claimant since you are the claimant,” Engoron explained. “Small claims court is inexpensive and easy use. You don't need money to bring a small claim. They are lawsuits for up to $5000. If you want to sue for $25,000 you go to civil court case. You don't need a lawyer.
Small claims court is open Thursday evenings and Tuesday, Wednesday, and Thursday mornings and interpreters are available if needed. The fee is $15. “If you’re sued you can counter sue, if you feel the other side is responsible,” Engoron said, giving examples of small claims: “You put down money for apartment and you never get the money back, you got bitten by a dog, you brought laundry to the dry cleaner and it got destroyed, or your car was hit."
“If you sue the city (common example: tripping on a raised sidewalk) you have to give notice of the claim to the city within 90 days of the incident." Engoron continued. "You should also bring witnesses to all your court dates. It is up to you to prove your case. You might be asked to appear before an arbitrator, instead of a judge, because of all the backlog." If you choose an arbitrator you will not have the option of appeal.
ACKNOWLEDGEMENT: Councilmember Mark Levine expressed his dismay that Jonathan Lippman, Chief Judge of the New York Court of Appeals was being forced to retire due to age limits. "Supreme Court Justice Jonathan Lippman has been an incredible advocate for establishing right-to-counsel in Civil Court. If there was ever an argument for doing away with age-limits, that's it," said Levine. Others echoed that.
SPECIAL THANKS to CRDC's Executive VP and Program Director, Judy Richheimer, for organizing and chairing the event. And thanks to CRDC VP Evelyn Suarez with her spread of refreshments and fruit.
A resolution for The-Right-To-Counsel in NYC's Civil Housing Court was passed by the CRDC in February, 2016.