Glass v. Thompson

• Decision Date: 26 January 1976
• Citation: 51 A.D.2d 69,379 N.Y.S.2d 427
• Parties: Lillian GLASS et al., Appellants, v. Edward R. THOMPSON, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 427

379 N.Y.S.2d 427

51 A.D.2d 69

Lillian GLASS et al., Appellants, v. Edward R. THOMPSON, etc., et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Jan. 26, 1976.

Bedford-Stuyvesant Community Legal Services Corp., Brooklyn (Cynthia Rollings, B. Mitchell Alter and June Zeitlin, Brooklyn, of counsel), and Community Action for Legal Services (Philip Damashek and Marttie L. Thompson, New York City, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen., New York City (Robert S. Hammer and Samuel A. Hirshowitz, New York City, of counsel), for respondents Thompson, McCoy and Tyson.

Before LATHAM, Acting P.J., and MARGETT, CHRIST, SHAPIRO and TITONE, JJ.

SHAPIRO, Justice.

In an action for a judgment declaring subdivision (e) of section 110 of the New York City Civil Court Act unconstitutional and for an injunction to prevent hearing officers rather than duly elected Civil Court Judges from hearing and deciding summary proceedings in the Housing Part of the Civil Court, plaintiffs appealed directly to the Court of Appeals from an order of the Supreme Court, Kings County, dated November 21, 1973, which, Inter alia, declared the statute in question to be constitutional on its face. The Court of Appeals transferred the appeal to this court upon the ground that a direct appeal did not lie since questions other than those involving the constitutional validity of a statutory provision were involved (Glass v. Thompson, 36 N.Y.2d 838, 370 N.Y.S.2d 908, 331 N.E.2d 687).

Two issues are presented on this appeal, viz.: (1) whether the appointment of hearing officers to hear and determine summary proceedings in the Housing Part of the Civil Court of the City of New York pursuant to section 110 (subd. (e)) of the New York City Civil Court Act, violates section 15 of article VI of the New York State Constitution and (2) whether the constitutionality of the statute in question may be sustained by analogizing officers To referees to hear and determine.

In the fall of 1973 two legal challenges were brought to the then recently created Housing Part of the Civil Court of the City of New York. The plaintiffs were represented by CALS, a community legal services office. One of these actions was the instant one, Glass v. Thompson, commenced by two respondents in summary proceedings seeking to dispossess them from their apartments.

At Special Term, Mr. Justice McGrover held the statute constitutional on its face, but only if the parties Consented to have the issues determined by a hearing officer. He said, in part (Glass v. Thompson, 75 Misc.2d 824, 828, 349 N.Y.S.2d 57, 61):

'If further developments in the summary proceedings instituted against the respective plaintiffs show that, notwithstanding the absence of consent on their part, hearing officers are assigned to hear and determine those proceedings, any constitutional objections to the manner in which section 110 is thus being implemented and administered may be raised at the time of trial and preserved for appeal. Until then, the objections raised herein by the plaintiffs are premature.' ¹

We agree with Mr. Justice McGrover that the statute is constitutional on its face, but we go further and hold that a reference to a hearing officer to hear and determine is proper, even in the absence of the consent of the parties, in all cases enumerated in the statute, except where a trial by jury has been properly demanded by either side.

The plaintiffs' first contention is that the appointment of hearing officers to hear and determine summary proceedings violates section 15 of article VI of the New York State Constitution.

The resolution of that contention raises no problems. Section 15 of article VI of the State Constitution, which, Inter alia, creates the Civil Court of the City of New York, provides that the judges thereof shall be city residents, elected by the people for 10-year terms, and that it shall have jurisdiction over summary proceedings to recover possession of real property. The constitutional provision in question creates the Civil Court and specifies the method by which its judges are to be selected; it does not prohibit references.

The provisions relating to hearing officers of the Housing Part and contained in section 110 of the New York City Civil Court Act, which states, in relevant part:

'(e) Actions and proceedings before the housing part shall be tried before judges or hearing officers. Hearing officers shall be appointed pursuant to subdivision (f) of this section. Rules of evidence shall be applicable in actions and proceedings before the housing part. The determination of a hearing officer shall be final and shall be entered any may be appealed in the same manner as a judgment of the court; provided that the assignment of actions and proceedings to hearing officers, the conduct of the trial and the contents and filing of a hearing officer's decision, and all matters incidental to the operation of the housing part, shall be in accordance with rules jointly promulgated by the first and second departments of the appellate division for such part.

'(f) The hearing officers shall be appointed by the administrative judge from a list of persons selected annually as qualified by training, interest, experience, judicial temperament (sic) and knowledge of federal, state and local housing laws and programs by the advisory council for the housing part.

'(i) Hearing officers shall have been admitted to the bar of the state for at least five years, two years of which shall have been in active practice. Each hearing officer shall serve full-time for three years. Reappointment shall be at the discretion of the administrative judge and on the basis of the performance, competency and results achieved during the preceding term.'

It is the use of the term 'hearing officer' by the Legislature which creates one of the problems before us. If the hearing officer is not a duly elected judge, or one appointed to fill the unexpired term of such a judge, and as we have seen, he is not, then he must be a form of referee, for that is the only nonjudicial office which exercises judicial authority. Trials before referees are historically not triable by jury. The referee's function is to apply his expertise to the resolution of complicated issues of fact, or to apply complicated principles of law in resolving disputed facts. The jury plays no part in his deliberations (8 Carmody-Wait 2d, New York Practice, §§ 61:1, 61:42). Consent to a reference is a waiver of the right to have issues of fact determined by a jury (Winans v. Winans, 124 N.Y. 140, 26 N.E. 293; 8 Carmody-Wait 2d, New York Practice, § 61:10; also, § 61:4).

Where a party has the right to a jury trial and refuses to waive it, a compulsory reference may not be ordered (Schaffer v. City Bank Farmers Tr. Co., 244 App.Div. 463, 280 N.Y.S. 401, affd., 269 N.Y. 336, 199 N.E. 503). However, the Rules of the Civil Court of the City of New York provide, in relevant part, that:

'The housing part shall be presided over by a judge of the Civil Court. The presiding judge Shall assign the individual cases to hearing officers; except that actions in equity and all actions to be tried by jury shall be tried before a judge' (22 NYCRR 2900.35(l); emphasis supplied.)

As can be seen, this rule mandates, by the use of the word 'shall', what is in effect a compulsory reference, except in equity actions and cases requiring a jury trial. However, the right to a jury trial is guaranteed to the parties in summary proceedings (Real Property Actions and Proceedings Law, § 745), but the statute specifically provides that the right to a jury trial is waived if not demanded at the time the petition is noticed to be heard. A tenant must file a jury demand with his answer to the petition or his right to a jury trial is waived (Central Hanover Bank & Tr. Co. v. Rabinowitz, 157 Misc. 654, 284 N.Y.S. 526). So far as this record discloses, the plaintiffs never demanded a jury trial at the time they filed their answers in the special proceedings against them and no claim is made in their briefs that a jury trial was demanded. Thus, proceeding on the assumption that neither side demanded a trial by jury in the summary proceedings, the Special Term was correct in holding that subdivision (e) of section 110 of the New York City Civil Court Act was constitutional, as applied in their proceedings.

The hearing officers authorized by section 110 are in essence referees; that is, nonjudicial officers of the court, appointed to assist it in the performance of its judicial functions. Under the wording of section 110 (subd. (e)), a trial in a summary proceeding may be had before a judge or a hearing officer. To deem the hearing officer not to be a referee would compel the conclusion that the statute is unconstitutional, for historically referees are the only court officers, aside from judges, who exercise the judicial function. Thus, since the hearing officer is not a judge of the court, elected as specified in the Constitution, he must be a referee, or lack any power whatever.

The basic question, therefore, is whether the Legislature had the power to authorize the trial of summary proceedings before a hearing officer; that is, whether it could create such a form of referee to serve in the Civil Court. A resolution of this question requires an examination of the history of the appointment of referees, of the history of summary proceedings to recover possession of real property and of the problems in enforcing the laws relating to housing which prompted the creation of the Housing Part of Civil Court.

Prior to the enactment of chapter 982 of the Laws of 1972, jurisdiction to enforce the various laws concerning compliance with housing standards, and to entertain summary proceedings to recover possession of real property, was split between the Civil and Criminal Courts of the City of New York. In enacting chapter 982, the...