Daily Development for Friday, December 8, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

LANDLORD/TENANT; SUMMARY EVICTION; CONSTITUTIONAL LAW: New York court rejects constitutional challenge to state statutes that (1) prohibit a court from staying an issuance and execution of an eviction warrant after 5 days following judgment for landlord; and (2) prohibit successive adjournments at the request of tenant, unless tenant has deposited into court the rent accrued from date of petition.

(1) Lang v. Pataki, 707 N.Y.S.2d 90 (A.D.1 Dept. 2000) (appeal denied 95 N.Y.2d 886, N.E.2d (N.Y. Sep 19, 2000).

(2) Jones v. Allen, 712 N.Y.S. 2d 306 (A.D. 2 Dept. 2000)

These statutes were challenged both on separation of powers grounds and due process grounds. In the first case, Lang, the court held that the statute prohibiting staying an issuance and execution of an eviction warrant 5 days following judgment for landlord does not strip the courts of their fundamental decision making authority. It commented that the courts retain the power to vacate an eviction warrant for good cause prior to its execution, including in appropriate circumstances the power to reinstate the tenancy after execution of the warrant.

The Lang court further held that the statute prohibiting successive adjournments without depositing rent with the courts does not interfere with the courts' ability to control their calendars. The court noted that the possibility that in particular cases such a statute could be applied in a manner that violates a tenant's right of due process does not render the statute invalid on its face.

In Jones, however, the statute was invoked to prohibit a court from issuing a stay in connection with a hearing on an order to show cause to set aside the eviction warrant. The court commented that there were two types of stay orders in eviction proceedings: The first type is a category in which relief from the stay of the eviction order is the ultimate relief sought. The statute, the court said, can lawfully deprive the courts from refusing to authorize prompt eviction once the courts have determined that the rent is unpaid and the landlord is entitled to relief.

The second type of stay is a stay to maintain status quo temporarily while the court conducts a hearing as to whether the eviction order should be vacated entirely. In Jones, for instance, the tenant apparently came before the court demonstrating that she had sufficient funds in the form of a check from a city welfare agency to pay the rent, but could not pay the rent into court because the check was made out to the tenant, and not to the court. She also demonstrated that her failure to pay the rent earlier was due to delay in the delivery of the check by the city agency. The court held that where this type of stay is at issue, the operation of the statute would unconstitutionally interfere with the function of the court in properly evaluating the show petition for the show cause order because the damage of the eviction might be done before the court could determine that eviction was, in fact, improper in the case.

Comment 1: Probably there are few jurisdictions today where the state legislature is so out of agreement with the courts in the largest city that it would find it necessary to pass legislation restricting the courts' ability to deal with eviction actions. But it could come to your jurisdiction sometime, given the developing rich/poor, urban/nonurban splits that are occurring nationwide.

Comment 2: Note that the two decisions were rendered by different departments of the New York Supreme Court, Appellate Division, for the City of New York. Are they consistent? Or do they in represent distinct philosophies about the appropriate role of the court in managing foreclosure actions?

Only a New York lawyer could tell us for sure, but to the editor there does seem to be a difference worth making a distinction between the two types of stays discussed by the second court. Note that the predicate of the first court's conclusion was that courts always had the power to overturn an eviction order once given. A temporary stay to facilitate such an order seems to be a necessary part of that power, and to deny the court's ability to provide such a stay may conceivable violate the separation of powers even when general stays are barred.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “Brokerdirt.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://cctr.umkc.edu/dept/dirt/