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A03320 Summary:

A03320 Actions:

A03320 Committee Votes:

Committee:JUDICIARY   Chair:Lavine      
DATE:05/04/2021AYE/NAY:15/6  Action: Favorable         
Lavine
Aye
Montesano
Nay
Zebrowski
Aye
Norris
Nay
Weprin
Aye
Walsh
Nay
Braunstein
Aye
Byrnes
Nay
Quart
Aye
Brown
Nay
Steck
Aye
Tannousis
Nay
Seawright
Aye
Joyner
Aye
Abinanti
Aye
Wallace
Aye
Walker
Aye
Cruz
Aye
McMahon
Aye
Mitaynes
Aye
Rajkumar
Aye

A03320 Floor Votes:

A03320 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A3320A
 
SPONSOR: Epstein

 
TITLE OF BILL:
 
An act to amend the New York city civil court act and the real property
actions and proceedings law, in relation to stipulations in summary
proceedings to recover possession of real property
 
 
PURPOSE:
 
This legislation establishes minimum standards for allocations of stipu-
lations involving unrepresented litigants in housing court proceedings
to ensure that all litigants understand the proceedings in which they
are involved, any defenses they may have, and the consequences of stipu-
lations. The legislation also adds compliance with these minimum stand-
ard for allocutions of stipulations involving unrepresented litigants as
a requirement for reappointment of Housing Court judges.
 
 
SUMMARY OF PROVISIONS:
 
Section 1 outlines the legislative findings and intent of this bill.
 
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 judg-
es. 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 know-
ledge 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. Subdivi-
sion 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 reap-
pointment 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 allo-
cutions 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 stipu-
lation 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 pres-
ent, 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 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 bene-
fits, 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 judi-
cial 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 a 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 majority of tenants in New York City Housing Court cases are still
unable to obtain legal counsel. According a fall 2020 report from the
New York City Office of Civil Justice analyzing the third year of the
City's Access to Counsel Program, only 38% of tenants were represented
by counsel in the first half of FY2020. While New York City recently
enacted legislation speeding up the citywide implementation of the
Access to Counsel program, tenants facing eviction are only eligible for
representation if their incomes are below 200% of the federal poverty
level. A significant percentage of low-and moderate income tenants with
incomes above this threshold are likely to continue to be unable to
afford private legal assistance and be forced to appear unrepresented in
court. Multiple studies over the years have shown that more than 98% of
building owners have legal counsel in Housing Court.
 
Despite the fact that that housing court was initially created to be
accessible to 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 thou-
sands of unrepresented litigants agree to stipulations each year that
lead to significant sums of money being owed, final judgments, and
warrants of eviction. A large percentage of the thousands of evictions
that occur each year are inevitably at least in part the result of
unrepresented litigants signing stipulations they do not understand. In
addition to the direct harms caused to individual litigants, the integ-
rity of the court system as a whole is negatively impacted when unrepre-
sented 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. Due
to the COVID-19 pandemic, the importance of this bill has increased
exponentially. Financial hardships led hundreds of thousands of tenants
to fall behind in their rent. Although the State has instituted a tempo-
rary moratorium on evictions for nonpayment of rent for tenants impacted
by the pandemic, when these cases resume, tenants are expected to
cumulatively owe billions of dollars that landlords can pursue money
judgments to collect. When the courts fully open and the temporary
eviction protections end, ongoing cases that were interrupted by the
sudden closure of housing court, coupled with the influx of new cases,
will result in many low and moderate income litigants being unable to
receive legal representation.  The courts and legislature have long
recognized that judges have an ethical duty to make certain that unrep-
resented 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. While judges may not provide legal advice, it will be
paramount that they can engage in the proactive allocation of settle-
ments to ensure that all parties fully understand stipulations, whether
all claims and defenses have been adequately addressed, and the conse-
quences 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 proac-
tively allocating stipulations involving unrepresented litigants and
delineating the minimum standards for such allocutions. Since the Admin-
istrative 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 interpreta-
tions 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 consist-
ent standards. Many judges continue to simply read the stipulation and
ask if the unrepresented litigant has any questions, while others close-
ly follow the recommendations in the 2007 advisory notice before approv-
ing 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 appar-
ently 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 (includ-
ing 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 allocate 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 incon-
sistencies among judges. This bill enshrines the Civil Court Administra-
tive 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 allocating 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:
 
2019-2020: S.5047/A.1511 Epstein - Passed Senate
 
2017-2018: S.4376/A.11106 Epstein - Judiciary
 
 
FISCAL IMPLICATIONS:
 
None.
 
 
EFFECTIVE DATE:
This act shall take effect 90 days after it becomes law.

A03320 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3320--A
                                                                Cal. No. 302
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 22, 2021
                                       ___________
 
        Introduced  by  M.  of  A. EPSTEIN, GOTTFRIED, REYES, SIMON, FALL, COOK,
          TAYLOR, GALLAGHER, STECK, JACKSON, FERNANDEZ -- Multi-Sponsored by  --
          M.  of A.  NOLAN -- read once and referred to the Committee on Judici-
          ary -- reported from committee, advanced to a third  reading,  amended
          and ordered reprinted, retaining its place on the order of third read-
          ing
 
        AN  ACT to amend the New York city civil court act and the real property
          actions and proceedings law, in relation to  stipulations  in  summary
          proceedings to recover possession of real property
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Legislative findings and  intent.  The  legislature  hereby
     2  finds and declares that litigants in cases in housing court parts, espe-
     3  cially  in  the  state's major metropolitan areas, are often self-repre-
     4  sented.  Under these circumstances, and especially  because  the  stakes
     5  for  the  self-represented  litigant in such cases can be so high, e.g.,
     6  eviction from one's home, it is vital to the administration  of  justice
     7  that  the  judges in such parts take all necessary and appropriate steps
     8  to  assure  that  self-represented  litigants   fully   understand   the
     9  proceedings  in which they are involved, any claims or defenses they may
    10  have and the available options in light of those claims or defenses, and
    11  the potential consequences of any agreements they may be asked  to  make
    12  in  the  course  of  those proceedings. Accordingly, it is the intent of
    13  this act that no agreement between the parties  to  a  proceeding  in  a
    14  housing  court  part wherein one or more of such parties are self-repre-
    15  sented may be approved by the court unless the judge  presiding  therein
    16  ascertains  that  the  claims or defenses of each self-represented party
    17  are adequately addressed in the stipulation and  that  each  self-repre-
    18  sented  party understands the nature and consequences of such agreement;
    19  and the judge memorializes such inquiry on the record of the proceeding.
    20  In declaring this intent, the legislature further reminds  all  authori-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01938-03-1
        A. 3320--A                          2
 
     1  ties  responsible  for  designating  the  judges  who preside in housing
     2  courts parts of the importance of selecting or reappointing  judges  who
     3  are  best  equipped, by training, experience and disposition, to preside
     4  over cases where parties frequently are self-represented.
     5    §  2.  Subdivisions  (f)  and  (i) of section 110 of the New York city
     6  civil court act, subdivision (f) as amended by chapter 64 of the laws of
     7  2007 and subdivision (i) as amended by chapter 310 of the laws of  1978,
     8  are amended to read as follows:
     9    (f)  The housing judges shall be appointed by the administrative judge
    10  from a list of persons  selected  annually  as  qualified  by  training,
    11  interest, experience, judicial temperament, ability to handle a caseload
    12  involving self-represented litigants and knowledge of federal, state and
    13  local  housing laws and programs by the advisory council for the housing
    14  part. The list of persons who have been approved by such advisory  coun-
    15  cil, whether or not appointed to such judicial position, shall be deemed
    16  public information and be published in the city record immediately after
    17  such  list  is submitted to the administrative judge.  The annual salary
    18  of a housing judge shall be one hundred fifteen  thousand  four  hundred
    19  dollars.
    20    (i)  Housing  judges  shall have been admitted to the bar of the state
    21  for at least five years, two years of which shall have  been  in  active
    22  practice.  Each  housing  judge  shall  serve  full-time for five years.
    23  Reappointment shall be at the discretion of the administrative judge and
    24  on the basis of the criteria set forth for  selection  by  the  advisory
    25  council  in subdivision (f) of this section, performance, competency and
    26  results achieved during the preceding term, and the  judge's  allocution
    27  of stipulations to self-represented litigants and the judge's compliance
    28  with  section  seven  hundred forty-six of the real property actions and
    29  proceedings law.
    30    § 3. Section 746 of the real property actions and proceedings law,  as
    31  added by chapter 281 of the laws of 2009, is amended to read as follows:
    32    §  746.  Stipulations.  1.  In any proceeding under this article, if a
    33  stipulation is made, on the  occasion  of  a  court  appearance  in  the
    34  proceeding, setting forth an agreement between the parties, other than a
    35  stipulation  solely  to  adjourn  or stay the proceeding, and either the
    36  petitioner or the respondent is not represented by  counsel,  the  court
    37  shall  fully  describe the terms of the stipulation to that party on the
    38  record.
    39    2. No stipulation required to be on the record by subdivision  one  of
    40  this  section  may  be  approved  by  the  court  unless the court first
    41  conducts an allocution on the record that shall, at a minimum, find  the
    42  following:
    43    (a) the identity of the parties and whether all necessary parties have
    44  been named in the proceeding;
    45    (b)  the  authority  of  the signatory to the stipulation if the named
    46  party is not present; and
    47    (c) shall further find:
    48    (i) that the unrepresented party understands that he or  she  may  try
    49  the case if he or she does not agree with the proposed stipulation or if
    50  an acceptable stipulation cannot be negotiated;
    51    (ii)  where the other party is represented, whether the party's attor-
    52  ney inappropriately gave legal advice to the unrepresented  litigant  or
    53  whether  the  unrepresented  litigant is agreeing to the proposed stipu-
    54  lation as a result of undue duress;
    55    (iii) whether the unrepresented respondent agrees with or contests any
    56  allegation in the petition and predicate notices;
        A. 3320--A                          3
 
     1    (iv) that the unrepresented party is aware of and  understands  claims
     2  or  defenses  he  or  she may have in the proceeding and is aware of the
     3  available options in light of those claims or defenses, especially where
     4  the stipulation provides for a surrender of the  dwelling  unit  or  the
     5  conversion of a nonpayment proceeding into a holdover proceeding;
     6    (v) that the unrepresented litigant's claims or defenses are adequate-
     7  ly addressed in the stipulation;
     8    (vi)  that the unrepresented party understands and agrees to the terms
     9  of the stipulation;
    10    (vii) that the unrepresented party understands the effect of  non-com-
    11  pliance  with  the  terms of the stipulation by either side and what the
    12  deadlines and procedures are for addressing such non-compliance, includ-
    13  ing how to restore the case to the court calendar to obtain relief under
    14  or from the stipulation;
    15    (viii) in all non-payment cases,  including  where  the  unrepresented
    16  party  indicates  that  he or she intends to apply for public assistance
    17  benefits or to a charity to pay rent that is sought  in  the  proceeding
    18  and that the court has determined to be owing to the petitioner, that an
    19  appropriate rent breakdown is included in the stipulation; and
    20    (ix)  that  the  unrepresented party understands the implications of a
    21  judgment against him or her and the legal requirement that the petition-
    22  er provide a satisfaction of judgment upon payment.
    23    3. The court may use a court attorney to conference a case  to  deter-
    24  mine  the unrepresented party's claims or defenses and his or her under-
    25  standing of all available options in light of those claims or  defenses,
    26  or any of the other elements of the allocution required by this section.
    27  However,  such  conference  may  not substitute for an allocution by the
    28  court and, where it is used, the results shall be reported to the court,
    29  which shall note on the record that such conference occurred.
    30    4. Notwithstanding the foregoing, where the court, in its  discretion,
    31  determines  that,  in the interests of justice, inclusion in the allocu-
    32  tion required by subdivision two of this section of one or more findings
    33  described in paragraph (c) of such subdivision is or are  not  necessary
    34  given  the  history  of  the  case,  prior appearances or other factors,
    35  excluding a court attorney conference provided for in subdivision  three
    36  above,  such  finding or findings may be omitted and the reason for such
    37  omission shall be set forth on the record.
    38    § 4. This act shall take effect on the ninetieth day  after  it  shall
    39  have  become  a  law  and shall apply to all proceedings commenced on or
    40  after such effective date.

A03320 LFIN:

 
NO LFIN

A03320 Chamber Video/Transcript: