Protect Self-Represented Tenants

Section 2 amends subdivisions f and i of section 110 of the New York City Civil Court Act which define the qualifications and criteria that must be considered when appointing and reappointing housing court judges. Housing court judges are appointed for five year terms by the Chief Administrative Judge from a list of applicants selected each year by the Advisory Council for the Housing Part. The advisory council screens individuals interested in becoming judges to determine whether they have the appropriate training, experience, judicial temperament, and knowledge of housing laws to serve successfully. Housing court judges are reappointed to additional five year terms at the discretion of the administrative judge, with input from the advisory council, based on an evaluation of each judge's performance in the preceding term. Subdivision f is amended to require candidates for initial appointments to demonstrate that they have the ability to handle large caseloads of unrepresented litigants. The amendments to subdivision i add new reappointment criteria requiring decisions to be partially based on each judge's record of handling large caseloads of unrepresented litigants, and allocutions of stipulations among unrepresented parties as described in Section 746 of the Real Property Actions and Proceedings Law.

Section 3 amends section 746 of the Real Property Actions and Proceedings law and adds three new subdivisions establishing that allocutions of stipulations involving an unrepresented litigant shall be on the record, and setting minimum standards for such allocutions. Subdivision 2 of Section 3 outlines the basic standards for allocating stipulations involving unrepresented litigants. These standards are based on those recommended in an April 6, 2007 advisory notice from the Civil Court Administrative Judge to all housing court judges. No stipulation involving unrepresented litigants may be approved unless the judge first ascertains the identity of the parties, the authority of the individuals signing the stipulation if the named parties are not present, and whether all necessary parties have been named. Judges must determine that the unrepresented litigant understands and agrees to the terms of a stipulation, the impacts of non-compliance, the procedures for addressing non-compliance, has the right to have a case go to trial, did not receive inappropriate legal advice, and is not agreeing to a stipulation under undue duress. Inquiries must be made to make certain that that unrepresented litigants are aware of any claims or defenses they may have, and agree with or contest any allegations in the petition or predicate notices. In non-payment cases against unrepresented parties who indicate they intend to apply for public assistance or charity benefits, the judge must ensure that stipulations include detailed rent breakdowns and the respondent understands the implications of failing to satisfy a judgment order.

Subdivision 3 of Section 3 permits judges to allow their court attorneys to conduct case conferences to determine an unrepresented party's claims, defenses, and understanding of available options but the results of these conferences must be reported to the court and cannot serve as substitutes for judicial allocutions. Subdivision 4 grants judges discretion to determine whether one or more of the findings required for allocutions involving unrepresented litigants are unnecessary in the interest of justice given the history of particular case.

Section 4 provides for the effective date.

Justification

Despite substantial new investments in civil legal services in recent years by the City of New York and the Office of Court Administration, the overwhelming number of tenants in New York City housing court cases are still unable to obtain legal counsel. More than 90% of tenants remain unrepresented, while more than 98% of building owners have legal counsel. 234,270 nonpayment and holdover cases were calendared against tenants in 2015. Although housing court was initially created to be accessible individuals without attorneys, unrepresented litigants are at a tremendous disadvantage. Countless studies have revealed that represented litigants are far more likely to win at trial, negotiate favorable stipulations, assert defenses, obtain repairs, prevent eviction, and are less likely to default.

All too frequently, unrepresented litigants are so confused by the court's technical procedures and legal language that they agree to waive their rights and sign legal settlements they do not fully comprehend. The consequences of unrepresented litigants signing stipulations without understanding the terms and ramifications are often profound for both the individuals involved and the court system as a whole. Tens of thousands of unrepresented litigants agree to stipulations each year that lead to significant sums of money being owed, final judgments, and warrants of eviction. A significant percentage of the more than 25,000 evictions that occur each year are inevitably at least in part the result of unrepresented litigants signing stipulation they do not understand. In addition to the direct harms caused to individual litigants, the integrity of the court system as a whole is negatively impacted when unrepresented litigants are denied the right to due process and access to justice. Housing court judges are also forced to dedicate a substantial portion of their daily calendars to motions brought by unrepresented litigants attempting to vacate or modify previously signed stipulations.

While it would be preferable for all litigants in housing court to be fully represented, there are steps that judges can take to ensure that those without representation at least understand the legal agreements they sign and are not grossly disadvantaged by unjust stipulations. The courts and legislature have long recognized that judges have an ethical duty to make certain that unrepresented litigants are freely and knowingly entering into stipulations. Appellate courts have repeatedly vacated stipulations when unrepresented litigants failed to understand the consequences or when stipulations were overreaching. Judges may not provide legal advice, but they can engage in the proactive allocation of settlements to ensure that all parties fully understand stipulations, whether all claims and defenses have been adequately addressed, and the consequences of noncompliance, without violating their ethical duty to remain impartial.

The Civil Court Administrative Judge issued an advisory notice in April 2007 to all housing court judges emphasizing the importance of proactively allocating stipulations involving unrepresented litigants and delineating the minimum standards for such allocutions. Since the Administrative Judge does not have the power to dictate specific practices to judges, this advisory notice simply encouraged judges to follow the recommended allocation protocol. The Legislature went further in 2009 by amending Section 746 of the Real Property and Procedures Law to require judges to "fully describe the terms" of stipulations when either party is not represented by counsel. However, the 2009 did not define "fully describe" stipulations, leading to vastly different judicial interpretations and practices.

Recent empirical studies conducted by the Cardozo Law School Housing Rights Clinic, the Urban Justice Center, Community Action for Safe Apartments, and others have highlighted the need for much more consistent standards. Many judges continue to simply read the stipulation and ask if the unrepresented litigant has any questions, while others closely follow the recommendations in the 2007 advisory notice before approving any stipulation. The 2013 Cardozo study concluded that the content of most allocutions remains "shockingly inadequate" after finding that judges inquired whether the unrepresented litigant understood potential defenses in less than 36% of cases and the consequences of noncompliance in less than 20% of the time. The Urban Justice Center and Community Action for Safe Apartment study conducted the same year found that 40% of unrepresented litigants never even spoke to a judge after signing a stipulation. In these cases the legally required "allocution" was apparently conducted only by a court attorney off the record and then approved by the court without the litigants being present.

There is no question that housing court judges face real challenges dealing with their extremely large caseloads. However, the Cardozo study revealed that full and appropriate allocutions can be completed within 3 to 10 minutes depending on the complexity of the case, and judges are already spending an average of 3.86 minutes for each allocution (including those done improperly). Therefore, there is clearly sufficient time in the court's schedule for judges to meet their ethical and legal responsibility to fully allocute each stipulation. Additionally, the proper allocution of all stipulations involving unrepresented litigants should substantially reduce the number of motions filed to vacate or modify previously signed stipulation freeing up additional time on court calendars.

An unrepresented litigant's chances of fully understanding a stipulation and his or her rights should not be subject to such inconsistencies among judges. This bill enshrines the Civil Court Administrative Judge's 2007 advisory notice in statute to ensure that all judges follow minimum established protocol for allocutions, and ensures that all unrepresented litigants have access to basic due process rights. It reinforces the significance of fully allocuting stipulations involving unrepresented litigants by making the quality of allocutions part of the criteria for judicial appointment and reappointment determinations for the first time. While retaining appropriate judicial impartiality, discretion, and independence, this legislation establishes clear and consistent minimum standards for allocutions.

Legislative history

This is a new bill.

Fiscal implications

None.

Effective date

This act shall take effect 90 days after it becomes law.