BILL NUMBER:  S4376

 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
stipulations 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 stipulations. The legislation also adds compliance
with these minimum standard 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
              

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.