Lang v. Pataki

• Decision Date: 30 March 1998
• Citation: 674 N.Y.S.2d 903,176 Misc.2d 676
• Parties: , 1998 N.Y. Slip Op. 98,272 Dainetta LANG et al., on Behalf of Themselves and All Others Similarly Situated, et al., Plaintiffs, v. George PATAKI, as Governor of the State of New York, Defendants, et al.
• Court: New York Supreme Court

Page 903

674 N.Y.S.2d 903

176 Misc.2d 676, 1998 N.Y. Slip Op. 98,272

Dainetta LANG et al., on Behalf of Themselves and All Others

Similarly Situated, et al., Plaintiffs, v. George PATAKI, as Governor of the State of New York,

Defendants, et al.

Supreme Court, New York County.

March 30, 1998.

Legal Aid Society, New York City (Judith Goldiner of counsel), for plaintiffs.

Dennis C. Vacco, Attorney-General, New York City, for George Pataki and another, defendants.

Michael Colodner, New York City, for Jonathan Lippman, as Chief Administrative Judge of the Courts of the State of New York and others, defendants.

Robinson Silverman Pearce Aronsohn & Berman, New York City, for Rent Stabilization Association, Inc., intervenor.

EDWARD H. LEHNER, Justice.

At issue on this motion for a preliminary injunction and class certification is the constitutionality of the recent amendments of sections 745(2) and 747-a of the Real Property Actions and Proceedings Law ("RPAPL") contained in Chapter 116 of the Laws of 1997. Each individually named plaintiff in the amended complaint asserts that he or she is at risk of wrongful eviction based on the allegedly unconstitutional laws. In addition, four organizations which promote tenants' rights are plaintiffs.

Named as defendants are the Governor of the State of New York (George Pataki), the State itself, the Chief Administrative Judge of the Courts of the State of New York (Jonathan Lippman), the Administrative Judge of the Civil Court of the City of New York (Fern Fisher-Brandveen) ("on behalf of all Judges assigned to the Housing Part of the Civil Court of the City of New York") (the "Housing Court"), the Chief Clerk of the Civil Court (Jack Baer), the First Deputy Chief Clerk of the Civil Court (Ernesto Belzaguy) ("on behalf of all Clerks" of the Housing Court), the Housing Court itself, and RHQ Associates (the landlord of plaintiff Danietta Lang). The various individual Civil Court and Housing Court judges are not named in the action and the attorneys representing the named administrative judges and clerks specifically assert that they do not represent any unnamed judge or clerk.

On December 2, 1997 plaintiffs brought this motion, via order to show cause, for a preliminary injunction to enjoin implementation of RPAPL §§ 745(2) and 747-a as violative of the due process and equal protection guarantees of the State and federal constitutions and the separation of powers doctrine. Plaintiffs move for certification of a plaintiff class consisting of all persons living as tenants in residential housing in New York City and for the certification of two defendant classes, to wit: all judges and all clerks assigned to the Housing Court.

Following an oral argument on December 2, 1997, Justice Emily Jane Goodman signed the order to show cause and issued a Temporary Restraining Order ("TRO") enjoining, pending the hearing of the motion, the defendants from implementing and applying §§ 745(2) and 747-a with respect to the named plaintiffs and "all others similarly situated". The action, which had originally been assigned to me under the random assignment process, was later transferred back to me by Administrative Judge Stephen Crane who determined that plaintiffs' representation to the Clerk that this action was related to one pending before Justice Goodman and thus required transfer to her was not well founded.

By order to show cause dated December 15, 1997, the Rent Stabilization Association and several building owners moved to intervene as defendants, which motion was granted at oral argument without opposition. Also, on the day prior to the oral argument held on December 19, 1997, the complaint was amended to add five individuals as party plaintiffs.

The parties agreed that the TRO expired by its terms on the date of the oral argument. At the conclusion of the argument, I denied the request by plaintiffs for a stay of the eviction of the individual tenants, without prejudice to the right to seek such relief in the Housing Court where their proceedings were pending. All parties agreed that a determination of unconstitutionality could be made by any judge assigned to the Housing Court.

At oral argument I further suggested several times that the preferable route to be taken to obtain a prompt and effective adjudication of the challenge to constitutionality argued before me was by raising the issue before the Housing Court, the determination of which would be reviewable by the appropriate Appellate Term, whose determination would be binding on all Civil Court and Housing Court judges of the judicial department. Instead, in this action plaintiffs seek to have me certify as a class "all persons living in residential housing in New York City who have been or may be sued in a summary proceeding", which, in effect, means every tenant living in the City, which relief if granted would require some form of notice and an opportunity for any tenant to opt-out. They request for class certification of all judges and clerks assigned to the Housing Court is with the goal of binding all such judges by the determination rendered herein. The motion papers do not seek to join any landlord other than named defendant RHQ Associates.

As of the time of argument no answer had been served by any defendant. Several days after argument it was suggested to the parties that, even though issue had not been joined, they stipulate to having me treat the motion as one for summary judgment. However, plaintiffs and other parties objected on various grounds and since appropriate notice had not been given prior to submission, consideration of the motion on the basis of CPLR 3211(c) was not appropriate. Accordingly, the motion is being treated, as argued, as solely for a preliminary injunction, for which relief plaintiffs must demonstrate the traditional requirements of "a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in their favor" [Aetna Insurance Company v. Capasso, 75 N.Y.2d 860, 552 N.Y.S.2d 918, 552 N.E.2d 166 (1990)].

Under this criteria, no preliminary injunction can issue on the motion before me because plaintiffs cannot demonstrate that irreparable harm would ensue from a denial of the motion. I come to this conclusion because in the Housing Court, the preferable forum for the resolution of landlord/tenants disputes [Post v. 120 East End Avenue Corporation, 62 N.Y.2d 19, 475 N.Y.S.2d 821, 464 N.E.2d 125 (1984)], any plaintiff herein would have the opportunity to challenge the statutes attacked as being unconstitutional, and the judge before whom that argument is made would have the obligation to determine that contention before passing upon the landlord's application for a deposit or eviction. Notwithstanding this conclusion, considering the voluminous submissions on this application, I have analyzed the constitutional contentions under the belief that there may shortly be before me a motion for summary judgment on the cause of action for a declaratory judgment on constitutionality.

As a result of the 1997 amendment, subsection 2 of RPAPL § 745 now provides, in part, that in the City of New York:

"(a) In a summary proceeding upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy.... ¹

* * *

"When the rental unit that is the subject of the petition is located in a building containing twelve or fewer units, the court shall inquire of the respondent as to whether there is any undisputed amount of the rent or use and occupancy due to the petitioner. Any such undisputed amount shall be paid directly to the petitioner, and any disputed amount shall be deposited to the court by the respondent as provided in this subdivision."

Paragraph (b) of the same subsection then limits the amount of rent to be deposited to the extent that the court "shall not require" a tenant to deposit that portion of the rent or use and occupancy which is: payable by direct government housing subsidy; a senior citizen rent increase exemption; a Social Services direct payment or two-party check; a shelter allowance; or two-thirds of a monthly supplemental security income payment.

Pursuant to paragraph (c)(i) of said subsection, if the payment is not made as directed, the court shall dismiss (upon an application by the landlord) the tenant's defenses and counterclaims without prejudice and grant judgment for the landlord unless the tenant interposes the defense of payment and shows that the amount required to be deposited has previously been paid to the landlord. Under paragraph (c)(ii), if a tenant makes the required deposit but thereafter fails to continue to deposit all rent or use and occupancy that "may become due up to the time of the entry of judgment", the court shall, upon an application of the landlord, order an immediate trial of the issues raised in the tenant's answer. An "immediate trial" shall mean:

"that no further adjournments of the proceeding without petitioner consent shall be granted, the case shall be assigned by the administrative judge to a trial ready part and such trial shall commence and continue day to day until completed. There shall be no stay granted of such trial without an order to respondent to pay rent or use and occupancy due pursuant to this subdivision and rent or use and occupancy as it becomes due." [RPAPL § 745(2)(c)(ii)].

Further, under other provisions of the paragraph, the court cannot extend the time for...