NYCLA REPORT ON RESOURCES IN THE HOUSING COURT

New York County Lawyers’ Association

14 Vesey Street

New York, NY 10007

(212) 267-6646 * Fax: (212) 406-9252

www.nycla.org

NEW YORK COUNTY LAWYERS’ ASSOCIATION
REPORT ON RESOURCES IN THE HOUSING COURT

This Report was approved by the Board of Directors of the New York County Lawyers’ Association at its regular meeting on February 5, 2007.

Background

On October 28-29, 2004, the Justice Center of the New York County Lawyers’ Association (NYCLA), chaired by former dean of Fordham Law School, John Feerick, hosted a conference, “The New York City Housing Court in the 21st Century: Can It Better Address the Problems Before It?” occasioned by the Court’s 30th anniversary. Conference participants considered how the Housing Court is facing the challenges of the new century in light of ever-changing social and economic conditions, and whether it is well prepared to meet the challenges of the coming decades. Conferees examined the Court’s role in responding not only to the legal questions that come before it, such as housing conditions, holdovers and non-payment of rent, but also to the myriad social and financial problems that underlie many Housing Court cases–problems that if unaddressed can and do lead to homelessness. Recognizing that the preeminent challenge facing America’s legal system is to ensure universal access to justice, conference participants focused extensively on the challenges of making that access a reality in a court in which the overwhelming majority of cases involve pro se parties.

After the Conference, NYCLA issued a Report (available on the NYCLA website at http://www.nycla.org/siteFiles/Publications/Publicationsl95__0.pdf), which contained recommendations and proposals for reform, including establishment of a right to counsel in Housing Court for parties unable to afford counsel, as a means to reduce homelessness in New York City; improved resources, especially for litigants of diminished capacity; and establishment of Protocols and Best Practices (or standards) for more active oversight by judges of cases in which a pro se party is opposed by a represented party. NYCLA subsequently created the NYCLA Task Force on the Housing Court (hereinafter “Task Force”), co-chaired by Professor Paula Galowitz and Hon. Marcy S. Friedman, to work towards the implementation of some of the reforms recommended at the Conference.

The Task Force produced three reports: Report on Right to Counsel in Housing Court, Report on Protocols for Judges in the Settlement and Trial of Cases Involving Unrepresented Litigants in Housing Court, and Report on Resources in Housing Court, which were adopted by the NYCLA

Board of Directors on December 4, 2006, December 4, 2006, and February 5, 2007, respectively. This Report was prepared by the Task Force Subcommittee on Resources in Housing Court.

Introduction

This Report addresses the work of the Resources Subcommittee, which was chaired by Lisa E. Cleary with Justin Kaufman serving as secretary. The Subcommittee recognizes that the New York City Housing Court has made significant improvements in the past decade under the leadership of Justice Fern Fisher, Administrative Judge for the Civil Court of the City of New York, in developing extensive resources for pro se litigants. Pro se litigants now have improved access to court papers, forms for answers and routine motions, excellent publications about legal claims and defenses, and other written materials that provide information to pro se litigants in Housing Court. In addition, Housing Court now has Resource Centers with Court staff who are available to provide pro se litigants with procedural information. There are also Rental Assistance Units of the Human Resources Administration on site to assist in the expediting of public assistance rent grants.

Given the great strides the Housing Court has made in providing the above resources and assistance to pro se litigants, the Resources Subcommittee focused on other types of resources that would also improve access to justice for Housing Court litigants. Three of these potential areas for improvement were identified in the NYCLA Report on the Housing Court issued in October 2005 and in discussions of the full NYCLA Task Force and the Resources Subcommittee. This Task Force Report includes recommendations to NYCLA in three targeted areas: improving coordination between various governmental agencies and the Housing Court; expanding use of computer and technology resources in the Housing Court; and establishing guidelines for the Guardian Ad Litem (GAL) program, which serves litigants with diminished capacity. The Task Force also recognized the need to address a fourth area – the impact of the sale of electronic Housing Court data by the Office of Court Administration.

The Task Force reiterates the urgent need for a civil right to counsel so that poor people are represented in Housing Court proceedings that can result in the loss of their homes. Representation by counsel is especially critical in preserving the due process rights of litigants with diminished capacity. The Task Force recommends that New York City and New York State provide adequate funding for civil legal services.

Report and Recommendations

Agency Coordination

New York City Department of Housing Preservation and Development, New York City Department of Buildings, and New York State Division of Housing and Community Renewal

Resource Coordination Subgroup members explored what additional coordination, if any, was required among the Housing Court and New York City Department of Housing Preservation and Development (HPD), New York City Department of Buildings (DOB) and New York State Division of Housing and Community Renewal (DHCR), in order to ensure that the Court can expeditiously obtain useful and relevant information to aid in the resolution of landlord-tenant and Housing Part proceedings.

Justice Fern Fisher advised that the Court and individual Judges already had extensive online access to information maintained by HPD and DOB through their websites. The HPD website includes information with respect to the size of a building (e.g., the number of Class A and Class B units and the number of stories), the nature and number of current violations placed against the building, the emergency repair charges owing on the building, the names and addresses of the registered owner and registered managing agent, and the violation history. The DOB website, commonly referred to as BIS or Building Information System, provides access to all certificates of occupancy for a building, violations, filings for alterations, plumbing, electrical work and permit history.

However, Justice Fisher noted that the Court does not have online access to DHCR’s rent registration information and that such information would be useful to the Court when it is handling summary non-payment proceedings and rent overcharge claims, particularly when tenants are unrepresented. Currently, such information may be available on an individual basis when requested by a tenant from DHCR; however, many tenants are unable or unwilling to follow through with DHCR to obtain relevant or necessary information. Indeed, on occasion, tenants do not even recognize that such information may be relevant and helpful to the outcome of their cases. Justice Fisher advised that the Court sought to negotiate a Memorandum of Understanding (MOU) with DHCR in 1997/1998 for the Court to obtain online access to relevant DHCR records; however, DHCR failed to finalize the MOU.

After speaking with Justice Fisher, the Task Force contacted DHCR and spoke with Michael Rosenblatt, Assistant Commissioner/Deputy Counsel. He believes that New York Rent Stabilization Code (RSL) § 2526.5 and § 2528 make potentially relevant and helpful DHCR information confidential and, therefore, prohibit the DHCR from making rent records accessible to the Court without a party’s permission.

Section 2526.5 provides:

The DHCR shall safeguard the confidentiality of information furnished to it at the request of the person furnishing such information, unless such information must be made public or available to a governmental agency in the interest of establishing a record for the future guidance of persons subject to the RSL.

Section 2528 provides:

Registration information filed with the DHCR pursuant to this Part shall not be subject to the Freedom of Information Law, provided that such information relative to a tenant, owner, lessor or subtenant shall be made available to such party or his/her authorized representative.

However, Mr. Rosenblatt suggested that Acting General Counsel David Cabrera might consider entering into an MOU with the Office of Court Administration (OCA) if OCA requested access to DHCR’s rent registration information in a letter that clearly defined the nature of the access that OCA was seeking. He indicated that DHCR had concerns about the scope of access to its database, who would be authorized to access the data and under what circumstances. In making its decision as to whether to enter into an MOU, DHCR would take into consideration the purpose of the access (in this case, to provide information to the judiciary that would aid in properly resolving litigation), other public policy concerns and the confidentiality provisions recited above. The Task Force believes that OCA could make a compelling argument that DHCR should provide limited access to its registration information to Housing Court Judges in order to ensure that the Court has expeditious access to relevant information and to serve the interests of justice.

Recommendation:

OCA should once again explore the possibility of entering into an MOU with DHCR so that Housing Court and the Housing Court Judges can have online access to DHCR’s rent registration information.

2 Human Resources Administration (HRA)

Members of this subset of the Resources Subcommittee began to investigate how government agencies could more effectively coordinate with the Housing Court to improve services. The Task Force found that in HRA’s current liaison program in the Housing Court, HRA’s Rental Assistance Unit has Case Consultant staff located in Housing Court in the five boroughs and in the two Community Justice Centers. The staff provides the following eviction/homelessness prevention services on a daily basis to the Court, to non-public assistance and public assistance clients, and to the legal/community-based organizations doing business with the Court on behalf of clients:

Emergency on-site rent arrears grant assessments
Computerized case-status information/printouts
HRA policy and procedural information
Referrals to HRA Job Centers and other HRA and non-HRA. programs/services
Receipt and decontrol of HRA rent arrears checks and subpoena responses delivered to the Court

Recommendations:

HRA should participate in regularly scheduled meetings with Housing Court Judges.

HRA should participate in Guardian Ad Litem training programs.

Computers and Technology

Some of the Task Force recommendations developed by the Computers and Technology Subgroup will require a modification of Court procedures and/or policies and expenditure of money and/or time by the Housing Court staff. The Task Force believes that other recommendations can be implemented with little or no investment of money or Court staff time. In making these suggestions, the Task Force recognizes that the Housing Court has explored improving the use and accessibility of technology in the past, and is firmly committed to making improvements to the system wherever possible.

1 Docket/Case Information and Information Available through the City of New York Department of Housing Preservation and Development

It is the Task Force’s understanding that the New York City Housing Court provides computer terminals in the courthouses that attorneys and litigants can access to check on the status of active cases (“Court Terminals”). However, until recently the Court Terminals did not permit access to the information available from the Department of Housing Preservation and Development (HPD). As a result of the process of creating this Report, HPD approved a request to permit access to its information on the Court Terminals. Providing this access will allow litigants to review HPD information while in Housing Court.

It is also the Task Force’s understanding that the OCA Division of Technology has made Housing Court calendar information available on the New York State Unified Court System E-Courts web page (https://iapps.courts.state.ny.us/caseTrac/jsp/ecourt.htm). However, currently this website cannot be accessed by litigants using the Court Terminals, and there is no direct link to this website on the New York City Housing Court website (http: //www.courts. state. ny.us/courts/nyc/housing/index.shtml).

Recommendation:

Access to the E-Court’s website should be provided on the Court Terminals and a direct link should be created to E-Courts on the welcome page of the New York City Housing Court website.

The information available on the Housing Court website only relates to cases with future Court dates. It is the Task Force’s understanding that more extensive docket/case information is available on the Court Terminals and could be linked to the Court website. The cost of this measure should be minimal because little or no hardware would need to be purchased and it should only involve creating links to the Court’s database. Docket/case information and case filings are available to attorneys and litigants in the federal court system and should similarly be made available in Housing Court.

Recommendation:

The more extensive information on the Court Terminals should be made available to the public through the Housing Court’s website and/or through E-Courts.

Electronic Filing

Electronic filing of documents is not available in Housing Court. As noted in footnote 5, the CM/ECF and PACER systems allow for electronic filing and viewing of documents filed in the federal court in the Southern District of New York. Electronic filing is available for certain courts in New York State through the Filing By Electronic Means System (FBEM). It is the Task Force’s understanding that a request has been made to OCA for the Civil Court to obtain universal case management and that it is likely that electronic filing will be part of the package that makes up that system. However, implementation of universal case management in the Civil Court will not become effective until 2007 and will not include the Housing Court. Therefore, an electronic filing system for Housing Court through OCA is several years away. It is the Task Force’s understanding that electronic filing has been made available in Small Claims Court by use of a private vendor that charges a fee for creating electronic files that are reviewed and uploaded by Court staff.

Recommendation:

An arrangement with a private vendor should be explored for the Housing Court to determine whether or not it is technologically and economically feasible to have electronic filing of documents in Housing Court. In light of the potential volume of filings, any exploration of electronic filing using a private vendor should include a discussion concerning providing access free of charge to individuals without the economic means to pay for the service. The use of a private vendor would only be necessary until such time as OCA is able to provide such services directly. To the extent legislation is required to implement this recommendation, such legislation should be pursued.

Internet Access in the Housing Court

As noted above, limited internet access is currently available to pro se litigants who have cases pending in the Civil Court of the City of New York, including Housing Court. The Task Force believes that giving attorneys internet access to relevant websites, such as the HPD website, would aid them in the prosecution and defense of cases and, as a result, improve efficiency. Such access could be made available either by providing internet access using the Court Terminals, additional internet jacks for laptop computers or wireless internet access To the extent that these options cost money, such cost can be offset by charging a nominal fee.

Recommendation:

The availability of additional internet access (both wi-fi and wired internet access stations) in Housing Court should be explored and, where feasible, should be provided. If necessary, the Housing Court should impose a nominal fee for access time in order to support internet access.

Facsimiles

In the Housing Court in Bronx and Kings Counties, facsimile machines in attorney rooms and their upkeep are paid for by the attorneys. Facsimile machines could be installed by attorneys in the remaining counties upon request, provided that the attorneys pay for the machines and their upkeep.

Recommendation:

Upon request by the local bar, provided that attorneys agree to share the cost of purchase and maintenance, facsimile machines should be provided, where feasible, in the counties that do not yet have them (New York, Queens and Staten Island).

Case-Tracking Reports

The Task Force believes it would be useful for Housing Court Judges to be able to request reports that track cases by using metrics such as: Guardian Ad Litem appointments; judge; address of property/building at issue; attorney; default judgments that have been vacated with cases restored to the calendar; executed warrants, etc. Although some reports are available to Housing Court Judges upon request, it often takes an inordinate amount of time to receive such reports. The delay is due in part to the age of the computer system used for the Housing Court and the fact that Housing Court staff have to request that OCA programmers run the reports.

Recommendations:

The Court should explore the possibility of exporting data on a periodic basis (daily, weekly or monthly) from OCA to the Housing Court, which would permit Housing Court staff to run reports and supply them to the Judges in a more expeditious manner.

The Court should explore the possibility of purchasing a new computer system as the current computer system is outdated and results in inefficiencies.

Guardian Ad Litem (GAL) Program

The Task Force Subcommittee focusing on the GAL program in Housing Court acknowledges the significant commitment that the Housing Court has made under Justice Fisher’s leadership towards developing and monitoring the GAL program. The appointment of a GAL Coordinator is a major advancement in the management and continued viability of the GAL program. The Subcommittee agreed on four ways to improve the use of GAL resources in Housing Court.

increasing the number of competent, well-trained GALs and providing adequate support, training and supervision to ensure that they perform their services in an appropriate manner;

increasing the involvement of the private bar as pro bono GALs and providing adequate support, training and supervision to ensure that they perform their services appropriately;

standardizing Court procedures to ensure the preservation of due process rights of litigants with diminished capacity; and

advancing the view that pro bono GALs should be entitled to immunity or indemnification with respect to their service.

Expand the Number of GALs

Increase the Number of Competent, Well-Trained GALs

Justice Fisher advised the Task Force of the need to double the current pool of certified GALs from 100 to 200 individuals. In addition to the recommendations below designed to increase the role of private attorneys in the GAL program, it is important to make efforts to increase participation among non-attorneys who take part in the certification program and are willing to serve as GALs. The GAL Coordinator is working to increase the number of such individuals. Calling references, something currently being performed by the Housing Court, is an important method of screening out unqualified individuals as the Court works toward increasing the number of qualified GALs in the available pool.

Recommendation:

The number of competent, well-trained GALs should be increased and GALs should be provided with adequate support, training and supervision to ensure that they perform their services in an appropriate manner.

Increase the Involvement of the Private Bar

To improve efficiency and access to justice for litigants in Housing Court, private law firms should be encouraged to serve as GALs. This work should be credited as pro bono work. Although GALs do not represent litigants as attorneys, attorneys serving as GALs use their legal training, acumen and advocacy skills in ways that fall within the New York City Bar’s definition of pro bono pursuant to its Statement of Pro Bono Principles, The Civil Court’s list of persons who are certified to serve as GALs contains only a limited number of candidates, most of whom accept the $600 fee. Generally, this $600 fee does not adequately compensate a GAL for his/her service, based on the actual amount of time and level of work involved. Therefore, increasing private bar participation as pro bono GALs is a way to increase the number of and overall quality of available GALs and, in turn, will increase access to justice in Housing Court.

Recommendation:

The involvement of the private bar as pro bono GALs should be increased and they should be provided with adequate support, training and supervision to ensure that they perform their services appropriately.

In order to encourage private law firm involvement and to streamline the GAL certification process, the Housing Court under Justice Fisher’s leadership is developing an abbreviated training program and video for pro bono private attorneys who work with legal services providers and serve as GALs. The Task Force encourages the Housing Court to continue these efforts by producing a shortened version of the Court-required GAL training, in print and on video/DVD. MFY Legal Services, Inc. is willing to oversee the creation of the training video/DVD to be used by private bar attorneys working with legal services providers throughout the City. In this way, the training program could be distributed to private law firms with a formal certification to be signed by each lawyer wishing to serve as a GAL, attesting that the material has been reviewed by the lawyer in advance of taking on a case. This certification could be filed with the Court at the commencement of the service; the Court would then be assured that the private attorney serving as a GAL has been provided with adequate and appropriate GAL training before undertaking the pro bono representation.

This recommendation is made based on the following circumstances. First, at the present time, the Court-approved GAL training is offered only once every six months and requires attendance in downtown Manhattan from 9 a.m. to 5 p.m. on the training date. Second, attorneys serving as GALs at the request of legal services groups are given substantial direction by the legal services agency with respect to APS/benefits issues/one- shot grants, etc., and their experiences as lawyers should decrease the amount of training required to qualify them as Court-approved GALs. Third, the legal education, training, experience and resources of private law firm GALs may provide a strong foundation for addressing the needs of the litigant in need of a GAL. For these reasons, among others, there is good reason why a day-long training is not necessary for attorneys. In fact, the Task Force believes that streamlining the GAL-approval process for private bar attorneys is in the best interests of all stakeholders in the Housing Court process.

Finally, the Task Force noted that another way to increase private bar involvement in the GAL program would be to publicize the value of GAL services to the New York legal community. To this end, Lisa Cleary contacted William Dean, who writes a regular column in the New York Law Journal called “Pro Bono Digest.” Mr. Dean’s article appeared in the July 3, 2006 edition of the New York Law Journal. (See Appendix A.)

Standardize Procedures in Cases Where GALs Are Appointed for Respondents with Diminished Capacity

Although the Task Force recognizes the significant improvements the Housing Court has made in the GAL program, it is concerned about the lack of procedures to protect the due process rights of litigants with diminished capacity, and about inconsistencies in the way that cases involving a GAL are handled.

Recommendation:

Court procedures should be standardized to ensure the preservation of due process rights of litigants with diminished capacity.

The Task Force acknowledges that procedures set forth below do not address all conflicts that may arise between a GAL and a litigant. However, the Task Force believes that implementation of these procedures will substantially improve access to justice for litigants with diminished capacity.

Recommendations:

Housing Court Judges should ensure that GALS follow the procedures set forth below:

The GAL shall review Court filings.

The GAL shall use best efforts to meet with the respondent to explain the proceeding and establish a relationship. The GAL shall notify the Housing Court Judge in the event the GAL is unable to meet with respondent despite the best efforts of the GAL.

To the extent possible, the GAL should be encouraged to retain counsel.

To the extent feasible, if the respondent is represented by counsel, the GAL shall investigate the petitioner’s allegations and any facts relevant to a defense of the proceeding. The GAL shall then advise the respondent of a proposed defense in order to obtain the respondent’s assent if the respondent has sufficient capacity to assent (subject to paragraph h(2) below).

The GAL shall investigate the petitioner’s allegations and any facts relevant to a defense of the proceeding. The GAL shall then advise the respondent of a proposed defense in order to obtain the respondent’s assent (subject to paragraph h(2) below).

Before the case is settled or sent to trial, the GAL shall complete a written form report and submit the report to the Judge. After the Judge evaluates the report, the report must be filed and sealed pursuant to 22 N.Y.C.R.R. 216.1, to the extent confidential information might be revealed in the report. The GAL shall retain a copy of the written form report for a period of seven years.

When the GAL’s proposed settlement includes a final possessory judgment and/or issuance of a warrant of eviction, the Housing Court Judge must engage in more heightened scrutiny than if the proposed resolution did not implicate surrendering or otherwise conveying the tenancy.

If the respondent is present in Court, the Housing Court Judge must directly inquire of the respondent whether (s)he understands the proposed settlement and agrees with it If it is a non-payment proceeding, the Housing Court Judge should inquire about the feasibility of any plan for payment and whether there are other substantial legal issues, such as a warranty of habitability claim.

If the GAL and the respondent (and counsel for the respondent, if any) concur, the Housing Court Judge may accept the proposed settlement if (s)he believes the settlement is appropriate. If the Housing Court Judge believes the settlement is inappropriate, the Judge may, in his/her discretion, reject the settlement or seek agreement of the parties to modify it.

If there is no agreement between the GAL and the respondent (and counsel for the respondent, if any), the Housing Court Judge is to evaluate the respondent to determine whether the respondent has sufficient capacity to decide how the case should be resolved. If so, the Court should refer the case for trial or other proceedings; if not, the GAL should refer the case to Adult Protective Services (APS) for an Article 81 proceeding.

If the respondent is not present in Court, the GAL shall, to the fullest extent possible, obtain an affidavit from the respondent expressing the respondent’s agreement or disagreement with the proposed settlement, which the GAL shall submit with his/her written report. If obtaining the affidavit from the respondent is not possible, the GAL shall provide the Court with an affirmation or affidavit stating that the respondent is either in agreement or disagrees with the proposed settlement.

If the GAL and the respondent (and counsel for the respondent, if any) concur, the Housing Court Judge may accept the proposed settlement if the Housing Court Judge believes the settlement is appropriate. If the Housing Court Judge believes the settlement is inappropriate, the Judge may, in his/her discretion, reject the settlement or seek agreement of the parties to modify it.

If there is no agreement between the GAL and the respondent (and counsel for the respondent, if any), the Housing Court Judge is to evaluate the respondent to determine whether the respondent has sufficient capacity to decide how the case should be resolved. If so, the Court should refer the case for trial or other proceedings; if not, the GAL should refer the case to APS for an Article 81 proceeding.

If the respondent is missing, the Housing Court Judge should direct the GAL to undertake an investigation to determine the whereabouts of the respondent (i.e., in hospital system, homebound, etc.) before entering a default.

Recommendation:

These procedures and best practices are in accordance with the CPLR and New York case law and are designed to protect the due process rights of all litigants with diminished capacity in Housing Court. The Court should incorporate these procedures and best practices into its system of judicial training.

Judge Fisher recently issued an Advisory Notice to all Housing Court Judges stressing the importance of handling GAL cases in a manner that protects the rights of litigants with diminished capacity. (See Appendix B.) Judge Fisher also issued a Directive and Procedure to all Housing Court Judges mandating that a GAL complete a GAL case summary form for each case, which must be retained by the GAL for three years, and that a Judge may require submission of the form or may query a GAL on the record. (See Appendix C.)

It is important to note that these recommended procedures and best practices do not address the role of Adult Protective Services (APS). Task Force members expressed concern about the efficiency of APS in connection with GALs. Inefficiencies appear to exist as a result of the lack of training provided to APS supervisors and caseworkers and in the performance of the psychological assessment of litigants with diminished capacity. During its discussion of this issue, the Task Force was informed that Civil Court does not have resources allocated under the current budget to add social workers to Court staff. Civil Court currently has a request pending for the hiring of one social worker under the OCA budget.

Recommendations:

APS supervisors and caseworkers should receive improved training.

A certified social worker should be assigned to each of the five boroughs to streamline the assessment process and ensure that each litigant who requires an assessment receives it in Court on the day of the litigant’s appearance

There should be a regular APS presence in Housing Court.

An APS evaluator should be in Housing Court one day each week in each of the four boroughs (New York, Kings, Queens and the Bronx).

Efforts currently underway by the Housing Court to add social workers should continue and funding should be allocated for social work staff.

Indemnification/Immunity for Pro Bono GALs

There is a diversity of opinion among private attorneys with regard to whether private legal malpractice insurance will cover work performed as a pro bono GAL in Housing Court. Although the duties of a GAL in a summary proceeding are different from those in a negligence, Article 81 or other proceeding involving substantial sums of money and a GAL is not the guardian of the litigant’s property nor does the GAL have control over the litigant’s finances, there is a concern about potential liability in connection with GAL service and the potential “chilling effect” this could have on expanding the role of private attorneys in the GAL process.

Some Task Force members felt that there is a strong argument to be made that under New York law, individuals serving as GALs are entitled to quasi-judicial immunity. However, no Court has addressed the issue directly in the context of GALs. In response to the Civil Court of the City of New York’s request for an opinion on the issue, April 6, 2006, the New York State Attorney General (AG) issued an opinion stating that volunteer GALs, certified by the Court through its GAL Program, are eligible for defense and indemnification by the State under Section 17(1 )(a) of the Public Officers Law. The opinion affirms that GALs who do not accept a fee for their service are volunteers participating in a state-sponsored volunteer program. However, a recent New York Court of Appeals decision, O’Brien v. Spitzer, 2006 Slip Op. 05158 (June 29, 2006), raises serious questions as to whether individuals serving as GALs will be entitled to indemnification from the State. In O’Brien, the court held that a private attorney appointed as a referee in a mortgage foreclosure proceeding was an independent contractor, and therefore not a “State employee” entitled to defense and indemnification from the State in a subsequent lawsuit brought against him arising out of his service as a referee.

Given this legal landscape, the Task Force believes that the AG’s opinion letter will not provide the protection to adequately assuage the concerns of private lawyers interested in serving as GALs.

Recommendation:

The Court should regularly provide guidance to the Judges about the indemnification issue during its judicial training programs so that Judges will be familiar with the issue should it arise during the course of legal proceedings. The issue should also be raised in all GAL training materials.

(D). Sale of Electronic Housing Court Data by OCA

The New York State Office of Court Administration (OCA) sells data about eviction cases brought in the New York City Housing Court to Tenant Screening Bureaus (TSB), which use the data to prepare tenant-screening reports that they sell to prospective landlords who want to determine if an applicant was sued by a prior landlord. The data, which are transmitted electronically from OCA’s computer system to the TSB’s computers, include information about the initial filing of each case (names of the parties, type of case, amount sued for, docket number) and a single word disposition (i.e., judgment, settled, writ of eviction issued, dismissed, discontinued, etc.). Tenants who have been sued by a prior landlord report finding themselves “blacklisted” from renting another apartment, regardless of whether the case was meritorious or whether the tenant was justified in withholding rent. TSB reports are often inaccurate, incomplete and/or misleading. For example, if a tenant is awarded a 90 percent rent abatement for repair problems, a TSB will report the disposition of that case simply as a “judgment” against the tenant for the remaining 10 percent of the rent.

Tenants are often advised that the fastest way to obtain needed repairs in their apartments is to withhold rent, let their landlord bring a non-payment proceeding, and then ask the Court for a repair order and a rent abatement. With the advent of OCA’s sale of this data, that advice might then result in a tenant becoming “blacklisted.” The sale of electronic Housing Court data to TSBs, without any restrictions or regulation by OCA, impedes tenants’ assertion of the warranty of habitability, and has a negative impact on preservation of the housing stock, a purpose for which Housing Court was established. (See New York City Civil Court Act § 110.)

The importance of this issue recently came to light in a decision issued by Judge Lewis A. Kaplan of the Southern District of New York. In approving a $1.9 million class action settlement filed against First American Registry, Inc. (a company that purchases Housing Court data from OCA) under federal and state consumer protection laws, Judge Kaplan noted that he was “troubled” because the settlement leaves First American’s “business model essentially intact.” Under the terms of the settlement, a $100 payment will be made to any tenant who was the subject of a report issued by First American since the suit’s filing in 2004.

Recommendation:

The sale of Housing Court data should be ended.

Finally, the Task Force noted that the funds received by OCA from the sale of Housing Court data do not return to OCA’s budget for the benefit of the Housing Court. By contrast, the funds received by OCA from its sale of Criminal Court data must return, pursuant to State law, to OCA’s Criminal Court budget. While not condoning the sale of either Housing Court or Criminal Court data, and while recommending that the sale of Housing Court data stop, the Task Force also feels the need to raise awareness of the impropriety of selling Housing Court data as a means of funding OCA’s general budget without providing any financial benefit to Housing Court, which is in need of additional resources.

TASK FORCE ON THE HOUSING COURT

The members of the Task Force and of its Subcommittees served in their individual capacities.

Their affiliations are listed for identification purposes only. Although there was substantial consensus on many of the recommendations, individual members of the Task Force may have views that differ from those presented in this report. For those members of the Task Force who are also members of the judiciary or employed by government agencies or other organizations, their participation in this project should not be understood as constituting any official endorsement of the conclusions or recommendations in the report.

Hon. Marcy S. Friedman

Supreme Court NY County

Co-Chair of the Task Force

Professor Paula Galowitz

New York University School of Law

Co-Chair of the Task Force

Professor Paris R. Baldacci

Benjamin N. Cardozo School of Law

Greg Berman, Esq.

Center for Court Innovation

Vernon Broderick, Esq.

Weil, Gotshal & Manges LLP

Catherine A. Christian, Esq.

Office of Special Narcotics Prosecutor

Lisa Elaine Cleary, Esq.

Patterson Belknap Webb & Tyler LLP

Hon. Marian C. Doherty

New York City Housing Court

Elizabeth Donoghue, Esq.

Himmelstein McConnell Gribben Donoghue & Joseph

Professor Russell Engler

New England College of Law

Klaus Eppler, Esq.

Proskauer Rose, LLP

Hon. Fern Fisher

Administrative Judge, Civil Court of the City of NY

Marilyn J. Flood, Esq.

New York County Lawyers’ Association

Professor Stephen Gillers

New York University School of Law

Howard Grun, Esq.

Kaufman Friedman Plotnicki & Grun LLP

Adriene Holder, Esq.

The Legal Aid Society

Professor Conrad Johnson

Columbia University School of Law

Lynn M. Kelly, Esq.

MFY Legal Services

Ann B. Lesk, Esq.

Fried, Frank, Harris, Shriver & Jacobson LLP

Ricardo E. Morales, Esq.

New York City Housing Authority

Michele M. Ovesey, Esq.

New York City Department of Homeless Services

Professor Russell Pearce

Fordham University School of Law

Deborah Rand, Esq.

New York City Department of Ho using Preservation & Development

Norman L. Reimer, Esq.

Immediate Past President, NYCLA

Executive Director, National Association of Criminal Defense Lawyers

Edwin David Robertson, Esq.

NYCLA President

Cadwalader, Wickersham & Taft LLP

Fern Schair, Esq.

American Arbitration Association

Andrew A. Scherer, Esq.

Legal Services for New York City

Bradley Silverbush, Esq.

Borah Goldstein Alschuler & Schwartz

Robert G. Silversmith, Esq.

Silversmith & Veraja LLP

Maureen Walsh, Esq.

New York City Human Resources Administration

SUMMARY OF RECOMMENDATIONS

Agency Coordination

OCA should once again explore the possibility of entering into an MOU with DHCR so that Housing Court and the Housing Court Judges can have online access to DHCR’s rent registration information.

HRA should participate in regularly scheduled meetings with Housing Court Judges.

HRA should participate in Guardian Ad Litem training programs.

Computers and Technology

Access to the E-Court’s website should be provided on the Court Terminals and a direct link should be created to E-Courts on the welcome page of the New York City Housing Court website.

The more extensive information on the Court Terminals should be made available to the public through the Housing Court’s website and/or through E-Courts.

An arrangement with a private vendor should be explored for the Housing Court to determine whether or not it is technologically and economically feasible to have electronic filing of documents in Housing Court. In light of the potential volume of filings, any exploration of electronic filing using a private vendor should include a discussion concerning providing access free of charge to individuals without the economic means to pay for the service. The use of a private vendor would only be necessary until such time as OCA is able to provide such services directly. To the extent legislation is required to implement this recommendation, such legislation should be pursued.

The availability of additional internet access (both wi-fi and wired internet access stations) in Housing Court should be explored and, where feasible, should be provided. If necessary, the Housing Court should impose a nominal fee for access time in order to support internet access.

Upon request by the local bar, provided that attorneys agree to share the cost of purchase and maintenance, facsimile machines should be provided, where feasible, in the counties that do not yet have them (New York, Queens and Staten Island).

The Court should explore the possibility of exporting data on a periodic basis (daily, weekly or monthly) from OCA to the Housing Court, which would permit Housing Court staff to run reports and supply them to the Judges in a more expeditious manner.

The Court should explore the possibility of purchasing a new computer system as the current computer system is outdated and results in inefficiencies.

Guardian Ad Litem Program

The number of competent, well-trained GALs should be increased and GALs should be provided with adequate support, training and supervision to ensure that they perform their services in an appropriate manner.

The involvement of the private bar as pro bono GALs should be increased and they should be provided with adequate support, training and supervision to ensure that they perform their services appropriately.

Court procedures should be standardized to ensure the preservation of due process rights of litigants with diminished capacity.

Housing Court Judges should ensure that GALS follow the procedures set forth below:

The GAL shall review Court filings.

The GAL shall use best efforts to meet with the respondent to explain the proceeding and establish a relationship. The GAL shall notify the Housing Court Judge in the event the GAL is unable to meet with respondent despite the best efforts of the GAL.

To the extent possible, the GAL should be encouraged to retain counsel.

To the extent feasible, if the respondent is represented by counsel, the GAL shall investigate the petitioner’s allegations and any facts relevant to a defense of the proceeding. The GAL shall then advise the respondent of a proposed defense in order to obtain the respondent’s assent if the respondent has sufficient capacity to assent (subject to paragraph h (2) below).

The GAL shall investigate the petitioner’s allegations and any facts relevant to a defense of the proceeding. The GAL shall then advise the respondent of a proposed defense in order to obtain the respondent’s assent (subject to sub- paragraph h (2) below).

Before the case is settled or sent to trial, the GAL shall complete a written form report and submit the report to the Judge. After the Judge evaluates the report, the report must be filed and sealed pursuant to 22 N.Y.C.R.R. 216.1, to the extent confidential information might be revealed in the report The GAL shall retain a copy of the written form report for a period of seven years.

When the GAL’s proposed settlement includes a final possessory judgment and/or issuance of a warrant of eviction, the Housing Court Judge must engage in more heightened scrutiny than if the proposed resolution did not implicate surrendering or otherwise conveying the tenancy.

If the respondent is present in Court, the Housing Court Judge must directly inquire of the respondent whether (s)he understands the proposed settlement and agrees with it, If it is a non-payment proceeding, the Housing Court Judge should inquire about the feasibility of any plan for payment and whether there are other substantial legal issues, such as a warranty of habitability claim.

If the GAL and the respondent (and counsel for the respondent, if any) concur, the Housing Court Judge may accept the proposed settlement if (s)he believes the settlement is appropriate. If the Housing Court Judge believes the settlement is inappropriate, the Judge may, in his/her discretion, reject the settlement or seek agreement of the parties to modify it.

If there is no agreement between the GAL and the respondent (and counsel for the respondent, if any), the Housing Court Judge is to evaluate the respondent to determine whether the respondent has sufficient capacity to decide how the case should be resolved. If so, the Court should refer the case for trial or other proceedings; if not, the GAL should refer the case to Adult Protective Services (APS) for an Article 81 proceeding.

If the respondent is not present in Court, the GAL shall, to the fullest extent possible, obtain an affidavit from the respondent expressing the respondent’s agreement or disagreement with the proposed settlement, which the GAL shall submit with his/her written report If obtaining the affidavit from the respondent is not possible, the GAL shall provide the Court with an affirmation or affidavit stating that the respondent is either in agreement or disagrees with the proposed settlement.

If the GAL and the respondent (and counsel for the respondent, if any) concur, the Housing Court Judge may accept the proposed settlement if the Housing Court Judge believes the settlement is appropriate. If the Housing Court Judge believes the settlement is inappropriate, the Judge may, in his/ her discretion, reject the settlement or seek agreement of the parties to modify it.

If there is no agreement between the GAL and the respondent (and counsel for the respondent, if any), the Housing Court Judge is to evaluate the respondent to determine whether the respondent has sufficient capacity to decide how the case should be resolved. If so, the Court should refer the case for trial or other proceedings; if not, the GAL should refer the case to APS for an Article 81 proceeding.

If the respondent is missing, the Housing Court Judge should direct the GAL to undertake an investigation to determine the whereabouts of the respondent (i.e., in hospital system, homebound, etc.) before entering a default.

These procedures and best practices are in accordance with the CPLR and New York case law and are designed to protect the due process rights of all litigants with diminished capacity in Housing Court. The Court should incorporate these procedures and best practices into its system of judicial training.

APS supervisors and caseworkers should receive improved training.

A certified social worker should be assigned to each of the five boroughs to streamline the assessment process and ensure that each litigant who requires an assessment receive the assessment in Court on the day of the litigant’s appearance.

There should be a regular APS presence in Housing Court.

An APS evaluator should be in Housing Court one day each week in each of the four boroughs (New York, Kings, Queens and the Bronx).

Efforts currently underway by the Housing Court to add social workers should continue and funding should be allocated for social work staff.

The Court should regularly provide guidance to the Judges about the indemnification issue during its judicial training programs so that Judges will be familiar with the issue should it arise in the course of legal proceedings. The issue should also be raised in all GAL training materials.

Sale of Electronic Housing Court Data by OCA

The sale of electronic Housing Court data should be ended.

New York Law Journal

Volume 235

Monday, July 3, 2006

PRO BONO DIGEST

Service as a Guardian Ad Litem

William J. Dean

A valuable pro bono role can be performed by lawyers through service as a guardian. ad litem. There are many frail and fragile people who live in New York City. According to the city’s Department of Health and Mental Hygiene, about 380,000 New Yorkers suffer from some form of mental illness.

The city’s Department of Aging reports that there are about 930,000 persons over the age of 65 living in the city. Some elderly New Yorkers find it difficult to manage their own affairs.

These New Yorkers are at risk if sued in proceedings in the Housing Part of the Civil Court of the City of New York for nonpayment of rent or for alleged acts that could jeopardize their tenancies.

‘In the Housing Court proceedings where cases move quickly and the laws involved are a byzantine web of overlapping provisions, the rights of litigants with diminished capacity are easily trampled, write the authors of ‘Protecting the Rights of Litigants with Diminished Capacity in the New York City Housing Courts,’ published in the Cardozo Public Law, Policy, and Ethics Journal. (The authors are Jeanette Zelhof, deputy director and managing attorney, MFY Legal Services Inc., Andrew Goldberg, supervising attorney, and Hina Shamsi, staff attorney.)

Guardians ad litem are appointed by Housing Court judges for litigants with diminished capacity. Ms. Zelhof and colleagues wrote: ‘Guardians ad litem and counsel for defendants perform different roles. The guardian ad litem is an officer of the court whose role is to protect the interests of the ward and report to the court. The attorney, while an officer of the court as well, must be a zealous advocate for the client in an adversarial process. The two roles are distinct, as are the obligations.’

In their capacity as guardians ad litem, lawyers can perform a critical role in assisting people in great need.

Case Histories

Here are examples of actual cases undertaken by lawyers on a pro bono basis through service as a guardian ad litem.

With the help of her court appointed guardian ad litem, Ms. S, an elderly tenant facing eviction, retained MFY Legal Services to defend against the nuisance holdover action brought against her by her landlord in Housing Court. Early in the proceedings, the judge had sent a court resource assistant to the apartment to conduct an inspection. The assistant issued a written report rejecting the landlord’s clutter allegation–the basis for the nuisance claim. The assistant also found numerous conditions in the apartment requiring repair. After the judge ordered the landlord to fix these conditions, the guardian ad litem and MFY lawyer together coordinated the extensive repair project with the client and contractor to ensure that the client could safely remain in her apartment while the repairs were being made. The guardian ad litem and MFY lawyer also visited the client’s apartment so that they could monitor the landlord’s compliance with the judge’s order and provide status updates to the Court.

Separate and apart from the issues of litigation and repair, the MFY lawyer and the guardian ad litem worked together to obtain much-needed home health services for the client.

Ms. G is an 80-year-old woman living in a one bedroom apartment in the West Village. She lives on the Social Security payments she receives each month. The landlord commenced a nonpayment action against Ms. G, alleging that she owed $2,500 in rent. Ms. G. denied owing any back rent. The court appointed a guardian ad litem to assist her

The guardian visited Ms. G and investigated the landlord’s claims. He obtained a rent breakdown from the landlord and contacted the SCRIE (Senior Citizen Rent Increase Exemption) program to review her benefit history. When the landlord pushed for the case to go to trial, the guardian ad litem contacted MFY to provide legal representation for Ms. G. The guardian also contacted charitable organizations to seek rental assistance for his ward. The judge before whom the matter was tried dismissed the landlord”s petition. Ms. G was able to maintain her long tenancy in the apartment.

Elise Brown is a litigator at Patterson, Belknap, Webb & Tyler. She served as a guardian ad litem on behalf of a woman seeking post-eviction relief who had been hospitalized at the time of the court proceedings. The landlord was willing to provide another apartment. Ms. Brown and the MFY lawyer divided tasks, with Ms. Brown working with the treating psychiatrist; with social workers to provide post-hospitalization community support services; and with the woman’s family. The MFY lawyer sought rental assistance from the Human Resources Administration and reinstatement of a §8 housing subsidy.

Ms. Brown described both herself and the MFY lawyer as ‘being tenacious’ on behalf of the tenant, and described her ward’s mother as ‘wonderful,’ and her brother as a ‘complete solid citizen.’ Ms. Brown and the woman’s family were present to welcome her to her new apartment. Without these efforts expended by Ms. Brown as guardian ad litem and Allegra Chapman of MFY Legal Services, the woman could have ended up being institutionalized.

Janet L. Blakeman, a counsel in the personal planning group at Patterson, Belknap, served as a guardian ad litem to a young woman with cerebral palsy living in a rent-controlled apartment. To avoid a future nonpayment of rent proceeding, Ms. Blakeman helped to arrange for the landlord to receive rent payments directly.

For her work as a guardian ad litem, Ms. Blakeman received, not a legal fee, but a mother’s day card from her ward. She has served as a guardian ad litem six times before.

Jacqueline M. Brandner, a litigator at Patterson, Belknap, served as a guardian ad litem to a 47-year-old man who, for 23 years, had lived in ‘a very small room in an SRO. Without knowing the consequences of his act, he had agreed to surrender the room to the building owner.

Following his departure from the SRO, the man spent several weeks as a homeless person. He was taken from the streets to St. Luke’s Hospital. Ms. Brandner met with his psychiatrist at St. Luke’s and met with his parents. Through her efforts as guardian, and the work of an MFY lawyer, the man was restored to his room by a judge and his possessions returned to him. The landlord also paid him damages, a portion of which he used to purchase a new bed.

Nicole M. Zeiss is an antitrust and securities lawyer at Labaton Sucharow & Rudoff. Her ward was a Vietnam veteran, now in his sixties. She was able to resolve a dispute with the landlord. She says of this experience, ‘It gave me an opportunity to interact with a client and to immediately see the beneficial results of my efforts. To help people who do not have resources, or access to assistance, is a great privilege for me.’

Kathleen McCabe is a lawyer with the securities group at Paul, Weiss, Rifkind, Wharton, & Garrison. Ms. McCabe assisted her ward in obtaining a new bank passbook to enable her to pay rent so she could return from a mental health facility to her own apartment. Ms. McCabe liked the emphasis on problem-solving that her work as a guardian ad litem entailed.

‘Alone in the World’

Ms. Zelhof of MFY Legal Services emphasizes the extreme vulnerability of persons with diminished capacity. In addition to being poor, they often are alone in the world. ‘Their leasehold is their only property right. If they lose their apartment, they are unlikely to find other housing in the current housing market. With no housing, they may end up in an adult home, or on the street. This would be for them a death sentence.’

For Lisa E. Cleary, a litigator and partner at Patterson, Belknap, being a guardian ad litem was a life-transforming event. Here she describes a case she worked on a decade ago:

My greatest accomplishment as a lawyer will always be my work on behalf of a mentally disabled indigent client, for whom I served as a guardian ad litem. This elderly gentleman would have become another homeless statistic, but for the intervention of MFY Legal Services and caring social workers.

When I had a child, this gentleman, upon learning the news, begged his social worker to let him pay me a visit. I gladly arranged the visit, eager to show, him a picture of my son. When he came to the office, he brought a little musical stuffed animal. for my son. He also brought me a ‘Friend’s Credit Card.’ The credit card’ said that the card ‘is not offered for material things but is to give you credit for being the greatest in the world and for that you deserve credit,’ It was- signed by Mr. s.; ‘authorized by one who knows.’

Lawyers who wish to serve as a guardian ad litem should contact Jeanette Zelhof, Managing Attorney, MFY Legal Services, at 212-417-3727; or Denise Colon-Greenaway, Coordinator, Guardian Ad Litem Program, at 646-386-5408

A Civil Gideon?

This August, the following resolution will be presented to the American Bar Association’s House of Delegates for adoption:

RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody (Emphasis added.)

The ABA’s Task Force on Access to Civil Justice, chaired by Howard H. Dana Jr., a Justice of the Maine Supreme Judicial Court, in its report invokes these words of U.S. Supreme Court Justice Wiley Rutledge: ‘Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion.’

The report of the task force, urging adoption of the resolution, concludes:

If Justice Rutledge’s self-evident statement required proof, the past 130 years of legal aid history have demonstrated its truth. Not only has equality before the law remained merely a matter of charity in the United States, but that, charity has proved woefully inadequate. The lesson from the past 130 years is that justice for the poor as a matter of charity or discretion has not delivered on the promises of justice for all’ and ‘ equal justice under law that form the foundation of America’ s social contract with all its. citizens, whether rich, poor, or something in between. The task force and other proponents of this resolution are convinced it is time for this nation to guarantee its low-income people equality before the law as a matter of right, including the legal resources required for such equality, beginning with these cases where basic human needs are at stake. We are likewise convinced this will not happen unless the bench and bar take a leadership role in educating the general public and policymakers about the critical importance of this step and the impossibility of delivering justice rather than injustice in. many cases unless both sides, not just those who can afford it, are represented by lawyers.

‘To shorthand it, as U.S. District Court Judge Robert Sweet said in a 1997 speech delivered at the Association of the Ear of the City of New York, ‘we need a Civil Gideon, that is, an expanded constitutional right to counsel in civil.matters, Lawyers, and lawyers for all, are essential to the functioning of an effective justice system.’

William J. Dean is executive director of Volunteers of Legal Service.

CIVIL COURT OF THE CITY OF NEW YORK

ADVISORY NOTICE

Subject: Settlements in GAL Cases

Class: AN-7

Category: LT-10

Eff: Date: March 8, 2007

SETTLEMENT OF GAL CASES

In light of the recent actions of a few Guardians Ad Litem in housing cases which have adversely affected the interests of their wards the following best practices are strongly advised:

The responsibility for insuring that a stipulation settling the case of a person for whom a GAL has been appointed is appropriate rests ultimately with the Judge who so orders the stipulation. BML Realty Group v. Jack Samuels. 2007 WL 58197, N.Y.L.J., March 2, 2007, 29:1 (N Y.Sup.App.Term 1st Dep’t.). To that end, it is advised that the Judge should, prior to approving a stipulation recommended by a GAL, ascertain if the GAL has at a minimum:

Met with the ward and attempted to make a home visit
Determined what the ward desires as an outcome of the case
investigated and weighed all factors in the case and is recommending a settlement that is in the best interests of the ward and which also has taken into account the ward’s desires if feasible.
Developed a plan to assist the ward in obtaining repairs, monies or other assistance needed to comply with the proposed stipulation.
Taken all steps to follow through with the plan to assist the ward
Informed the court if the ward agrees or disagrees with the proposed settlement
Taken all steps to get the ward to come to court or to locate the ward if the ward is missing.

In ascertaining the above a Judge either may require the GAL to submit the GAL Case Summary form( CIV-LT-57-2/2007 ) that GALs are now required to fill out for every case or may query the G AL on the record. In the event that the Judge requires the submission of the GAL Case Summary, the Judge may order such on the Order Appointing a GAL form (CIV-GP-l12-02/07). A GAL Case Summary should not be placed in a court file unless the form is made a sealed record, as the form may contain personal information which should not be made available to the general public. It is noted that the APS referral form, psychiatric reports etc., should also not be retained in the court file unsealed when the case is resolved, as these documents also may contain health information that should not be made available to the general public.

Each and every stipulation recommended by a GAL should be reviewed by the Judge, A Judge should insure that stipulations recommended by GALs. who are also admitted attorneys are reviewed by the Judge in the same manner as stipulations recommended by non-attorney GALs. Attorney GAL stipulations should not be treated as two attorney stipulations. The judge should insure that all claims and defenses are addressed in the stipulation following the guidelines set forth in the Advisory Notice on A1locuting Stipulations (AN-10/26/2006) and that the GAL has taken all the steps listed above.

CIVIL COURT OF THE CITY OF NEW YORK

ADVISORY NOTICE

Subject: Default Judgments in GAL Cases

Class: AN-8

Category: LT-10

Effective Date: March 8, 2007

Please be advised that pursuant to CPLR §§ 1201 and 1203, if it appears that a respondent is incapable of adequately defending against a proceeding, the court should appoint a guardian ad litem and any default judgment entered prior to the appointment in most instances should be vacated. Failure to vacate the default judgement maybe reversible error. Oneida v. Unczur, 37 A.D.2d 480, 326 N.Y.S.2d 458 (4th Dep’t 1971); State of New York v. Getelman, Sept. 7, 1993, NYLJ, pg. 25 at, 6 (Sup. Ct Albany Co.); Sarfaty v. Sarfaty, 83 A.D.2d 748, 443 N.Y.S.2d 506 (4th Dep’t 1981); Barone v. Cox, 51 A.D.2d 115, 379 N.Y.&2d 881 (4th Dep’t 1976); Glick v. Quintana, Nov. 30, 1992, NYLJ, pg. 27 at 4 (Civ. Ct. NY Co.); New York Life v. V.K., Mar, 3, 1999, NYLJ, pg. 27 at 5 (Civ. Ct. N.Y. Co.); Hotel Preservation v. Byrne, Mar. 12, 1999, NYU, pg 26 at 1 (AT 1st Dept.); Roe Corp. v. Jane Doe, Jan. 15, 2003 NYLJ, pg. 21 at 5 (Richmond Co. Dist. Ct).

Subsequent to the appointment of a Guardian Ad Litem, no default judgment maybe entered until 20 days after the appointment of the Guardian. Any default judgment entered in cases where a GAL has already been appointed should be entered only after the Judge is aware of the circumstances and the welfare of the incapable adult is considered. In cases where the 20 days have elapsed and neither the Guardian nor the respondent has appeared on a court date, all efforts should be taken to discern on the record the cause of the Guardian’s default. If the Guardian’s default is a result of derelict of responsibilities, the Guardian should be removed and a new Guardian appointed. In the latter event, a copy of the order removing a GAL for this reason or any other reason must be sent to the Administrative Judge immediately.

CIVIL COURT OF THE CITY OF THE CITY NEW YORK

DIRECTIVES & PROCEDURES

Subject: GAL CASE SUMMARY

Class: DRP-178

Category: LT-10

Eff. Date: March 7, 2007

BACKGROUND:

In light of concerns regarding recent actions on behalf of Housing Court Guardians Ad Litem that have adversely affected the interests of their court appointed respondent/ petitioner, the following policy is being implemented.

POLICY:

Guardians Ad Litem are mandated to complete a GAL Case Summary form CIV-LT-57 (2000) for each case where they are the appointed GAL.GAL s should use this form as a way of maintaining a record of their contact with the party to the Housing Court action for which they were appointed, advocacy efforts, and steps taken to follow through with the plan set forth in the stipulation of settlement.

Judges may require the GAL to submit the GAL Case Summary form or may query the GAL on the record. In the event that the Judge requires the submission of the GAL Case Summary, the Judge may order such on the Order Appointing a Guardian Ad Litem form. GAL Case Summary forms should not be placed in the court file unless the file is made a sealed record.

GALs must retain a copy of the completed GAL Case Summary forms in their files for a period of three years and, upon request, may be asked to furnish such a copy to the Administrative Judge for the Civil Court of the City of New York.

Date: March5, 2007 Fern A. Fisher

Administrative Judge

GAL CASE SUMMARY

Index Number: ________________________________

Case Name: ___________________________v.__________________________

□ Nonpayment OR □ Holdover

GAL Contact Information: Name:_____________________________

Address:___________________________

Phone Number:______________________

Fax Number:________________________

E-mail Address:_____________________

Investigation (check all that apply)

Reviewed: □ Court documents

□ Clinical records

□ Income and savings (Social Security, SSI, public assistance, etc.)

□ Other Documents/Reports (please specify):____________________

Met with litigant with diminished capacity (indicate dates):________________________

Comments:

Consulted with:

□ Litigant ________________________

□ Litigant’s attorney ________________________

□ APS ________________________

□ Litigant’s family members _________________________

□ Other (please specify)

GAL Initial Assessment and Plan:

Issues in Case (brief description such as: owes rent, repairs, right to apartment, nuisance behavior etc.)

___________________________________________________________________

Plan: □ APS assistance (describe plan) ______________________________

□ Contact welfare agency for reinstatement of benefits

□ Contact welfare agency for Emergency One-Shot grant

□ Obtain repairs

□ Relocation: ______________________________________________

□ Other: __________________________________________________

Comments: ____________________________________________________________

_____________________________________________________________

Does the resolution of the case involve the ward giving up rights to live in the apartment or otherwise vacating the apartment? □ Yes □ No

If yes, explain why ___________________________________________________________

Does the settlement involve any of the following?

□ Nonpayment final judgment with warrant

□ Nonpayment settled without judgment and warrant

□ Completion of repairs

□ Holdover probationary stipulation

□ Other (describe) ________________________________________

Name of Judge and date Judge approved stipulation: __________________________

By: _______________________________________________________