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.

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