Landlords Claim Court Bias in Favor of Tenants

Landlords Claim Court Bias in Favor of Tenants
String of Rulings Have Gone Against Property Owners
by Josh Barbanel, Wall Street Journal
December 29, 2014

A stream of decisions unfavorable to landlords in the New York Court of Appeals has many property owners saying the state’s highest court is tipping the scale in favor of tenants. Since Chief Judge Jonathan Lippman took office in 2009, the landlords contend, the court has shifted from an emphasis on closely reading the wording of state law to a broader focus on public policy and how it affects vulnerable tenants.

“You have a Court of Appeals very fond of taking landlord-tenant cases and ruling in favor of tenants even if that means overturning past precedents and logical thinking,” said Adam Leitman Bailey, a lawyer representing both landlords and tenants. Tenant lawyers said the decisions were firmly grounded in the law.

“In the landlord-tenant area, they have been giving much more serious consideration to arguments that were overlooked over the years,” said Andrew Scherer, a tenant advocate and author of a landlord-tenant practice manual and policy director at the Impact Center for Public Interest at New York Law School. “They are rendering solid, objective decisions.”

In a 4-2 decision last month, for example, the court ruled that the word “penalty” in the rent-stabilization law didn’t mean a penalty when it referred to repayment of rent overcharges. The interpretation allowed tenant lawyers to file class-action lawsuits to recover back rents.

In another case last month, involving an 80-year-old New York City widow, Mary Santiago, the court ruled 5-2 that the term “local public assistance benefit” in state law covered a tenant’s right to below-market rents from a private landlord. The decision had the effect of exempting rent-stabilized leases from bankruptcy-court proceedings.

In a third case, known as Grimm, decided 4-3 in 2010, the court found tenants could look back at many years of rental history to challenge rents, despite state law that said “this paragraph shall preclude the examination of rental history of the housing accommodation prior to the four year period.” The court said that a plausible claim of fraud was enough to set aside the statutory language.

Judge Lippman, in an interview, declined to discuss any of the court’s individual decisions. He said the court considered each case on its merits and tried to interpret the law as best it could.

“Judges are not divorced from their life experiences,” said Judge Lippman, who was appointed by former Gov. David Paterson , a Democrat, “but by the same token I can say quite strongly for myself and other members of the court that we don’t look at anything other than each case, one at a time.”

“We don’t look on ourselves as Republicans or Democrats or liberals or conservatives,” said Judge Lippman, who is a Democrat.

Judge Lippman has abandoned the approach of his processor, Judith S. Kaye, who sought compromises to achieve unanimous decisions wherever possible. Under his tenure, split decisions have risen sharply, leading to rulings that pulled the court in new directions.

Too much compromise, he said, can lead to watered-down decisions that don’t say anything. “The law evolves into a better form when you have strong majority and strong dissent,” he said.

The decisions that landlords say show a pro-tenant bias have come despite a narrow Republican majority on the court, though Democrats will likely be in a majority next year.

The Court of Appeals now consists of three Democrats and three Republicans, following the expiration in November of the 14-year term of Victoria A. Graffeo, a Republican. Gov.Andrew Cuomo declined to reappoint her and instead nominated a Democratic appellate judge, Leslie E. Stein, of Albany. The nomination is pending in the state Senate, which will be controlled by Republicans in 2015.

The court has evolved as Mr. Cuomo has appointed judges who had stints in legal services for the poor on their résumés: Sheila Abdus-Salaam, a onetime staff attorney for Brooklyn Legal Services, and Jenny Rivera, a onetime staff attorney in the Homeless Family Rights Project of the Legal Aid Society.

Vincent M. Bonventre, a professor at Albany Law School, said the court over the past few years has become more sympathetic to the rights of tenants, workers and the accused. “By the time a case gets to the Court of Appeals, there is no law that actually determines the decision, there are two sets of laws,” he said. “If you are a liberal Democrat, you tend to see things differently than a conservative Republican.”

Mitchell Posilkin, the general counsel for the Rent Stabilization Association, which represents rent-regulated landlords, said building owners now had little recourse but to go back to the Legislature and get it to undo court decisions with which it disagreed. He said the court has “become creative in reading into the law” and that has led to concerns about its credibility.

Ronald Mann, a Columbia Law School professor who represented Ms. Santiago case before the court, said his review of cases showed the judges “are interested in the concerns of tenants and that is something that resonates with them.”