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Justice Week gets mixed results.

On Monday morning, attorney Robert D. Goldstein thought he had a case that would result in the tenant paying rent to the court. The tenant had yet to appear in court - the individual is in a nursing home - but a relative intent on taking over the apartment did appear, requesting an adjournment for the last three times for the purpose of obtaining an attorney.

The reason no attorney was present this time, the relative told the court, was that the Legal Aid Offices on the Lower East Side had moved.

But Legal Service lawyers were nevertheless there with a prepared script and requested permission to become amicus, or a "friend" of the tenant, but not to represent the tenant.

"They came with their prepared script," said Goldstein, a partner with Finkelstein Borah Altschuler & Goldstein, of a phenomena reported in other courtrooms. "The judge had a prepared script that indicated there was some cooperation between legal services and the court. It was very surprising."

The court did not grant Goldstein's motion to pay rent to the court. Nor did judges in 50 of the cases last week where owners' attorneys requested the deposit of rent.

One Queens attorney did succeed in obtaining an order requiring a tenant to deposit rent with the court from Civil Court Judge Bernard Greenbaum. That order is being appealed and as of deadline, no money had been deposited.

"My argument was that this is a lady that only pays when we bring an action to evict," recalled attorney Albert F. Pennisi, a partner with Mordente Golfinopoulos & Pennisi of Kew Gardens, who said the tenant had been served with three dispossesses over the last seven months.

Pennisi continued the momentum started by Justice Week and obtained an order for deposit of rent this past Thursday on a different matter from a different judge, Housing Court Judge James R. Grayshaw.

"Justice should be 52 weeks out of the year and we're going to encourage everyone to continue what we started," said Joseph Strasburg, president of the Rent Stabilization Association (RSA), one of the owners' groups that advanced Justice Week from January 22 to 26th.

The week was organized as a time when owners and attorneys would attempt to fully prepare cases for trial, so when they requested the deposit of rent, they would be ready for the judge. In the past, attorneys usually did not even bother to ask for the deposit of rent because they and the owners were not usually ready for trial.

Some attorneys and owners requesting the deposit of rent were waylaid in their pursuit by judges who, with prepared script in hand, asked if they were ready for trial.

"They have to be prepared for trial and that means not having rent-impairing violations on the record and having the right paperwork so they can go to trial," explained owner R. Bonnie Haber, president of the Community Housing Preservation Corp. (CHIP), a middle market owner's group, and RBH Management Corp. Documents must also be certified and on hand.

Pennisi said with the help of his clients, his firm prepared over 200 cases and was continuing to ask for the deposit of rent on those cases.

At a hearing regarding a tenant at a 1,100-unit complex in Manhattan, handled by a different attorney that came before a judge on Friday, the computer listed one "C" violation from 1992 for a double cylinder lock, which is considered a tenant-caused violation. Said Strasburg, "Judge [Jay Stuart] Dankberg saw the 'C' and said, 'Sorry, I'm denying the application.'"

Dan Marguiles, executive director of CHIP, said Justice Week helped the owners and attorneys to realize they had "given up" on the courts.

"We have to educate owners that if they come ready for trial, they have a much better chance of getting rapid results," he said. "A very important message for the industry was that we quit psychologically on the courts and we have to start fighting back, coming to court ready for trial and insisting on your rights. And it works."

In the past, convinced they did not have a chance of obtaining the deposit of rent and afraid to incur the wrath of the judges, or deciding they could not wait hours for a transcription to be made, attorneys and owners didn't even bother to ask.

R. Bonnie Haber said Justice Week raised the consciousness of the entire housing court system.

"It's made the judges aware of our concerns and that is how things begin," she said. "It also made owners more aware of their rights."

Agreed RSA chairman, Arnold Goldstein, managing partner of Samson Management, "What we did find was that everyone - from judges to clerks to attorneys - were all aware of our presence. People were more polite, and responsive. There was a different aura in the courtroom."

While not even a handful of cases were 'won," the participants report that many tenants signed stipulations so they would not be required to pay the rent to the court.

Transcripts of the week's cases are being obtained by RSA and the attorneys involved, who will be meeting soon for a "debriefing."

RSA intends to continue to gather evidence from housing court cases for at least the next month to use for both its Federal action and to convince the New York State legislature that the current statute must be strengthened to remove the discretion from the judges.

"It forced these judges to review the law carefully and it made their posture, up to now which was to tell you they were not going to deal with deposit requests, was dead wrong," said attorney Goldstein. "There were some judges that will start to make people make deposits; some will never change because they have a political agenda."

These judges always have the opportunity to declare the law unconstitutional, yet no one has yet done so. The law, Section 745 of the Real Property Actions and Proceedings Law, states in part 2a: "In a summary proceeding upon the second request by the tenant for an adjournment, the court shall direct that the tenant post all sums as they come due for future rent and use and occupancy... unless waived by the court for good cause shown."

It goes on to state in 2b: "In any adjournment of a summary proceeding, other than on consent or at the request of the petitioner, the court shall at the petitioner's request state on the record why for good cause shown it is not directing the tenant to pay or post all sums demanded pursuant to a lease or rental agreement in the proceeding as rent and use and occupancy."

Marguiles said that in only a very small percentage of the cases was "good cause" shown. "In most cases, the judges are giving us a perfect record for appeal," he said. "We are getting negative answers and they are foolish."

Some reasons judges used to deny the request include: "I'm not going to order on a violation free building if the tenant alleges a violation.," or "We're not going to order after four adjournments to get an attorney."

Attorney Goldstein also predicted there will come a time when either the Appellate Court will direct them to change or the legislature will change the law to give the judges no room for discretion, or "the court administration system will have to deal with the fact they have judges that do not want to enforce the law."

The selection of the judges is another target in the RSA sights. "We are going to encourage a change in the process where the mayor appoints these judges," said Strasburg. "At least there would be a level of accountability and a screening process."

Currently, the court administration appoints the Housing Court judges and they primarily come out of a tenant-oriented background. Judges for certain other courts are elected and that is another alternative RSA would like considered.
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Author:Weiss, Lois
Publication:Real Estate Weekly
Date:Feb 7, 1996
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