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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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| Jul 22, 2020 |
referred to judiciary delivered to assembly passed senate |
| Jul 21, 2020 |
ordered to third reading cal.777 |
| Jul 20, 2020 |
reported and committed to rules reported and committed to rules |
| Jan 08, 2020 |
referred to judiciary returned to senate died in assembly |
| Jun 14, 2019 |
referred to judiciary delivered to assembly passed senate ordered to third reading cal.1386 committee discharged and committed to rules |
| Apr 04, 2019 |
referred to judiciary |
Senate Bill S5047
2019-2020 Legislative Session
Relates to stipulations in summary proceedings to recover possession of real property
download bill text pdfSponsored By
(D, WF) 28th Senate District
Archive: Last Bill Status - In Assembly Committee
- Introduced
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- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
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- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
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Floor Vote: Jul 22, 2020
aye (43)- Addabbo Jr.
- Bailey
- Benjamin
- Biaggi
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- Felder
- Gaughran
- Gianaris
- Gounardes
- Harckham
- Hoylman-Sigal
- Jackson
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Lanza
- Little
- Liu
- Martinez
- May
- Mayer
- Metzger
- Montgomery
- Myrie
- Parker
- Persaud
- Ramos
- Rivera
- Robach
- Salazar
- Sanders Jr.
- Savino
- Sepúlveda
- Serrano
- Stavisky
- Stewart-Cousins
- Thomas
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Floor Vote: Jun 14, 2019
aye (42)- Addabbo Jr.
- Bailey
- Benjamin
- Biaggi
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- Felder
- Gaughran
- Gianaris
- Gounardes
- Harckham
- Hoylman-Sigal
- Jackson
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Little
- Liu
- Martinez
- May
- Mayer
- Metzger
- Montgomery
- Myrie
- Parker
- Persaud
- Ramos
- Rivera
- Salazar
- Sanders Jr.
- Savino
- Sepúlveda
- Serrano
- Skoufis
- Stavisky
- Stewart-Cousins
- Thomas
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Jul 21, 2020 - Rules Committee Vote
S504713Aye5Nay1Aye with Reservations0Absent0Excused0AbstainedJun 14, 2019 - Rules Committee Vote
S504712Aye6Nay1Aye with Reservations0Absent0Excused0AbstainedJul 20, 2020 - Judiciary Committee Vote
S504711Aye3Nay1Aye with Reservations0Absent0Excused0Abstained -
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co-Sponsors
(D) 16th Senate District
(D, WF) 18th Senate District
2019-S5047 (ACTIVE) - Details
2019-S5047 (ACTIVE) - Sponsor Memo
BILL NUMBER: S5047
SPONSOR: KRUEGER
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 stipu-
lations 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. Subdi- vision 2 of Section 3 outlines the basic standards for allocating stipu- lations 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 wheth- er all necessary parties have been named. Judges must determine that the unrepresented litigant understands and agrees to the terms of a stipu- lation, 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 pred- icate 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 repres- ented 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 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 under- stand. 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 substan- tial portion of their daily calendars to motions brought by unrepre- sented litigants attempting to vacate or modify previously signed stipu- lations. 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 know- ingly 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 an d 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 proac- tively 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 prac- tices 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 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 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: 2107-2018: S.4376/A.11106 Epstein - Judiciary FISCAL IMPLICATIONS: None. EFFECTIVE DATE: This act shall take effect 90 days after it becomes law.
2019-S5047 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5047
2019-2020 Regular Sessions
I N S E N A T E
April 4, 2019
___________
Introduced by Sen. KRUEGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
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:
Section 1. Legislative findings and intent. The legislature hereby
finds and declares that litigants in cases in housing court parts, espe-
cially in the state's major metropolitan areas, are often self-repre-
sented. Under these circumstances, and especially because the stakes
for the self-represented litigant in such cases can be so high, e.g.,
eviction from one's home, it is vital to the administration of justice
that the judges in such parts take all necessary and appropriate steps
to assure that self-represented litigants fully understand the
proceedings in which they are involved, any claims or defenses they may
have and the available options in light of those claims or defenses, and
the potential consequences of any agreements they may be asked to make
in the course of those proceedings. Accordingly, it is the intent of
this act that no agreement between the parties to a proceeding in a
housing court part wherein one or more of such parties are self-repre-
sented may be approved by the court unless the judge presiding therein
ascertains that the claims or defenses of each self-represented party
are adequately addressed in the stipulation and that each self-repre-
sented party understands the nature and consequences of such agreement;
and the judge memorializes such inquiry on the record of the proceeding.
In declaring this intent, the legislature further reminds all authori-
ties responsible for designating the judges who preside in housing
courts parts of the importance of selecting or reappointing judges who
are best equipped, by training, experience and disposition, to preside
over cases where parties frequently are self-represented.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02532-01-9 S. 5047 2 § 2. Subdivisions (f) and (i) of section 110 of the New York city civil court act, subdivision (f) as amended by chapter 64 of the laws of 2007 and subdivision (i) as amended by chapter 310 of the laws of 1978, are amended to read as follows: (f) The housing judges shall be appointed by the administrative judge from a list of persons selected annually as qualified by training, interest, experience, judicial temperament, ABILITY TO HANDLE A CASELOAD INVOLVING SELF-REPRESENTED LITIGANTS and knowledge of federal, state and local housing laws and programs by the advisory council for the housing part. The list of persons who have been approved by such advisory coun- cil, whether or not appointed to such judicial position, shall be deemed public information and be published in the city record immediately after such list is submitted to the administrative judge. The annual salary of a housing judge shall be one hundred fifteen thousand four hundred dollars. (i) Housing judges 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 housing judge shall serve full-time for five years. Reappointment shall be at the discretion of the administrative judge and on the basis of the CRITERIA SET FORTH FOR SELECTION BY THE ADVISORY COUNCIL IN SUBDIVISION (F) OF THIS SECTION, performance, competency and results achieved during the preceding term, AND THE JUDGE'S ALLOCUTION OF STIPULATIONS TO SELF-REPRESENTED LITIGANTS AND THE JUDGE'S COMPLIANCE WITH SECTION SEVEN HUNDRED FORTY-SIX OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW. § 3. Section 746 of the real property actions and proceedings law, as added by chapter 281 of the laws of 2009, is amended to read as follows: § 746. Stipulations. 1. In any proceeding under this article, if a stipulation is made, on the occasion of a court appearance in the proceeding, setting forth an agreement between the parties, other than a stipulation solely to adjourn or stay the proceeding, and either the petitioner or the respondent is not represented by counsel, the court shall fully describe the terms of the stipulation to that party ON THE RECORD. 2. NO STIPULATION REQUIRED TO BE ON THE RECORD BY SUBDIVISION ONE OF THIS SECTION MAY BE APPROVED BY THE COURT UNLESS THE COURT FIRST CONDUCTS AN ALLOCUTION ON THE RECORD THAT SHALL, AT A MINIMUM, FIND THE FOLLOWING: (A) THE IDENTITY OF THE PARTIES AND WHETHER ALL NECESSARY PARTIES HAVE BEEN NAMED IN THE PROCEEDING; (B) THE AUTHORITY OF THE SIGNATORY TO THE STIPULATION IF THE NAMED PARTY IS NOT PRESENT; AND (C) SHALL FURTHER FIND: (I) THAT THE UNREPRESENTED PARTY UNDERSTANDS THAT HE OR SHE MAY TRY THE CASE IF HE OR SHE DOES NOT AGREE WITH THE PROPOSED STIPULATION OR IF AN ACCEPTABLE STIPULATION CANNOT BE NEGOTIATED; (II) WHERE THE OTHER PARTY IS REPRESENTED, WHETHER THE PARTY'S ATTOR- NEY INAPPROPRIATELY GAVE LEGAL ADVICE TO THE UNREPRESENTED LITIGANT OR WHETHER THE UNREPRESENTED LITIGANT IS AGREEING TO THE PROPOSED STIPU- LATION AS A RESULT OF UNDUE DURESS; (III) WHETHER THE UNREPRESENTED RESPONDENT AGREES WITH OR CONTESTS ANY ALLEGATION IN THE PETITION AND PREDICATE NOTICES; (IV) THAT THE UNREPRESENTED PARTY IS AWARE OF AND UNDERSTANDS CLAIMS OR DEFENSES HE OR SHE MAY HAVE IN THE PROCEEDING AND IS AWARE OF THE AVAILABLE OPTIONS IN LIGHT OF THOSE CLAIMS OR DEFENSES, ESPECIALLY WHERE S. 5047 3 THE STIPULATION PROVIDES FOR A SURRENDER OF THE DWELLING UNIT OR THE CONVERSION OF A NONPAYMENT PROCEEDING INTO A HOLDOVER PROCEEDING; (V) THAT THE UNREPRESENTED LITIGANT'S CLAIMS OR DEFENSES ARE ADEQUATE- LY ADDRESSED IN THE STIPULATION; (VI) THAT THE UNREPRESENTED PARTY UNDERSTANDS AND AGREES TO THE TERMS OF THE STIPULATION; (VII) THAT THE UNREPRESENTED PARTY UNDERSTANDS THE EFFECT OF NON-COM- PLIANCE WITH THE TERMS OF THE STIPULATION BY EITHER SIDE AND WHAT THE DEADLINES AND PROCEDURES ARE FOR ADDRESSING SUCH NON-COMPLIANCE, INCLUD- ING HOW TO RESTORE THE CASE TO THE COURT CALENDAR TO OBTAIN RELIEF UNDER OR FROM THE STIPULATION; (VIII) IN ALL NON-PAYMENT CASES, INCLUDING WHERE THE UNREPRESENTED PARTY INDICATES THAT HE OR SHE INTENDS TO APPLY FOR PUBLIC ASSISTANCE BENEFITS OR TO A CHARITY TO PAY RENT THAT IS SOUGHT IN THE PROCEEDING AND THAT THE COURT HAS DETERMINED TO BE OWING TO THE PETITIONER, THAT AN APPROPRIATE RENT BREAKDOWN IS INCLUDED IN THE STIPULATION; AND (IX) THAT THE UNREPRESENTED PARTY UNDERSTANDS THE IMPLICATIONS OF A JUDGEMENT AGAINST HIM OR HER AND THE LEGAL REQUIREMENT THAT THE PETI- TIONER PROVIDE A SATISFACTION OF JUDGEMENT UPON PAYMENT. 3. THE COURT MAY USE A COURT ATTORNEY TO CONFERENCE A CASE TO DETER- MINE THE UNREPRESENTED PARTY'S CLAIMS OR DEFENSES AND HIS OR HER UNDER- STANDING OF ALL AVAILABLE OPTIONS IN LIGHT OF THOSE CLAIMS OR DEFENSES, OR ANY OF THE OTHER ELEMENTS OF THE ALLOCUTION REQUIRED BY THIS SECTION. HOWEVER, SUCH CONFERENCE MAY NOT SUBSTITUTE FOR AN ALLOCUTION BY THE COURT AND, WHERE IT IS USED, THE RESULTS SHALL BE REPORTED TO THE COURT, WHICH SHALL NOTE ON THE RECORD THAT SUCH CONFERENCE OCCURRED. 4. NOTWITHSTANDING THE FOREGOING, WHERE THE COURT, IN ITS DISCRETION, DETERMINES THAT, IN THE INTERESTS OF JUSTICE, INCLUSION IN THE ALLOCU- TION REQUIRED BY SUBDIVISION TWO OF THIS SECTION OF ONE OR MORE FINDINGS DESCRIBED IN PARAGRAPH (C) OF SUCH SUBDIVISION IS OR ARE NOT NECESSARY GIVEN THE HISTORY OF THE CASE, PRIOR APPEARANCES OR OTHER FACTORS, EXCLUDING A COURT ATTORNEY CONFERENCE PROVIDED FOR IN SUBDIVISION THREE ABOVE, SUCH FINDING OR FINDINGS MAY BE OMITTED AND THE REASON FOR SUCH OMISSION SHALL BE SET FORTH ON THE RECORD. § 4. This act shall take effect on the ninetieth day after it shall have become a law and shall apply to all proceedings commenced on or after such effective date.
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