Protecting the Rights of Litigants With Diminished Capacity in the New York City Housing Courts
Cardozo Public Law, Policy and Ethics Journal - Nbr. III-3, January 2006
Zelhof/Goldberg/Shamsi - Deputy Director/Supervising Attorney at MFY/Staff Attorney at MFY
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Introduction. I. Background: Societal Developments Reflected in Statutes and Case Law. A. Societal Developments: Evolution Of Understanding Of Mental Illness. B. Judicial and Legislative Developments In New York: CPLR Article 12 And Its Background. C. Federal Developments: The Americans With Disabilities Act. II. Assessment of CPLR Article 12's Guardian Ad Litem Provisions as a Means of Protecting the Rights of Litigants with Diminished Capacity. A. Compliance By Parties With The Obligation To Inform, And By The Courts With The Obligation To Inquire, When A Litigant May Require A Guardian Ad Litem. 1. A Litigant is Obligated to Disclose to the Court any Information About Another Party's Inability to Prosecute or Defend a Proceeding. 2. The Court Must Be Diligent In Determining Whether a Litigant Requires A Guardian Ad Litem. 3. Consequences of a Litigant's Failure to Bring a Party's Diminished Capacity to the Court's Attention or of the Court Appropriately to Consider Such Information. 4. Recommendations. B. Standards for Appointment of a Guardian Ad Litem. 1. The Standards. 2. Recommendation. C. The Obligations Of The Guardian Ad litem And The Court After Appointment Of The Guardian Ad Litem. D. Recommendation. III. Recommendations to Bring the Housing Court into Compliance with the ADA and to Better Protect the Rights of Litigants with Diminished Capacity. A. Recommendation 1: Litigants With Diminished Capacity Should Be Identified Early In The Process. 1. Training for Judges, Clerks, and the Housing Court Staff. 2. Use of Appropriate Computer Technology to Cross-Reference Prior Court Appointment of Guardians Ad Litem and the Records of Adult Protective Services About Litigants at Risk.. 3. Disclosure by Landlords and Their Counsel at the Commencement of a Proceeding, or as Soon as They Become Aware of it, of Information They Have About The Possible Diminished Capacity of a Litigant. 4. Adequate Notice to Litigants of Their Right to Request an Accommodation Under the ADA.B. Recommendation 2: Once Litigants With Diminished Capacity Are Identified, A Variety Of Accommodations Should Be Made Available. Conclusion.
US Code - Title 42: The Public Health and Welfare - 42 USC 12134 - Sec. 12134. Regulations
US Code - Title 42: The Public Health and Welfare - 42 USC 12131 - Sec. 12131. Definitions
US Code - Title 42: The Public Health and Welfare - 42 USC 12102 - Sec. 12102. Definitions
US Code - Title 42: The Public Health and Welfare - 42 USC 12101 - Sec. 12101. Findings and purpose
Code of Federal Regulations - Title 28: Judicial Administration - 28 CFR 35.104 - Definitions.
Code of Federal Regulations - Title 28: Judicial Administration - 28 CFR 35.106 - Notice.
Code of Federal Regulations - Title 28: Judicial Administration - 28 CFR 35.160 - General.
Code of Federal Regulations - Title 29: Labor - 29 CFR 1630.2 - Definitions.
U.S. Supreme Court - Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)
U.S. Supreme Court - Bragdon v. Abbott, 524 U.S. 624 (1998)
U.S. Supreme Court - Youngberg v. Romeo, 457 U.S. 307 (1982)
U.S. Supreme Court - Jackson v. Indiana, 406 U.S. 715 (1972)
Protecting the Rights of Litigants With Diminished Capacity in the New York City Housing Courts
Jeanette Zelhof is the Deputy Director and Managing Attorney at MFY Legal Services, Inc. Andrew Goldberg is a Supervising Attorney at MFY Legal Services, Inc. Hina Shamsi was a Staff Attorney at MFY Legal Services, Inc. during the writing of this article. The authors wish to thank Elise Brown and Dinah Luck for research assistance.
Introduction. According to a 2002 New York City Department of Health and Mental Hygiene Community Health Survey, approximately 381,000 New Yorkers suffer from some form of serious mental illness.1 The New York City Department of Aging indicates that, according to the 2000 Census, there are over 930,000 persons over age 65 living in New York City.2This number does not include those living in "group quarters," a category that includes nursing homes and other institutions.3Thus, large numbers of individuals in New York City who are afflicted with mental illness or who are over age 65 are at risk of being sued in proceedings in the Housing Part of the Civil Court of the City of New York (the Housing Court) in the event of nonpayment of rent or allegations of activities that could jeopardize their tenancies. Individuals with mental illness and individuals suffering from age-related infirmities may experience great difficulty negotiating the Housing Court system. The system has strict procedural requirements, lacks a right to assigned counsel, yet has a mandate to summarily process cases.4 Individuals with diminished capacity, without understanding the legal consequences of their consent, have easily been pressured into signing agreements that give judgments and warrants to landlords. These individuals may also be more susceptible than other litigants to the pressure on Housing Court judges to expeditiously process summary proceedings. They may also be adversely impacted by the Housing Court's hectic environment,5where, often, little time is allowed for inexperienced defendants to fully comprehend the issues despite the enormity of the rights at stake. On the occasion of the 30th Anniversary of the Housing Court, this article examines the statutory and jurisprudential bases for protections currently in place for litigants with diminished mental capacity. This article also suggests improvements, including accommodations pursuant to the Americans with Disabilities Act of 1990 (the ADA)6and a right to counsel, so that the Housing Court can better serve and protect the rights of litigants with diminished capacity. The article is based on the experiences of attorneys in the Mental Health Law Project and the Adult Home Advocacy Project of MFY Legal Services, Inc. (MFY) in the Housing Courts in the five boroughs of New York City. MFY has provided free civil legal services to low-income New Yorkers since its founding in 1963. Originally a unit of Mobilization for Youth, a social welfare organization on Manhattan's Lower East Side, MFY was incorporated as a separate not-for-profit law firm in 1968. In 1983, the Mental Health Law Project of MFY was created to provide advocacy services and legal representation to persons with psychiatric disabilities throughout New York City. In 1994, the Adult Home Advocacy Project was created to focus on the rights of disabled residents of adult homes (known as "board and care homes" outside New York State) citywide. In these projects, MFY's staff represents persons in, among other matters: housing, Supplemental Security Income/Social Security Disability (SSI/SSD) benefits, public assistance, Medicaid, and civil rights issues. MFY's work enables persons with mental illness to avoid homelessness and hospitalization. In addition, it enables such persons to remain in the community by ensuring the pres- ervation of income streams and affordable housing, including private apartments, public housing and supportive housing. The staff of the Mental Health Law Project and the Adult Home Advocacy Project train, advise and represent thousands of persons with disabilities each year. Part I of this article describes the evolution of society's understanding of people with mental illness and their capacity to make decisions, as well as the reflection of that evolution in more flexible and enlightened legislation and jurisprudence. This section reviews how New York's legislature and its courts have applied the state's long-standing commitment to rigorous protection of the mentally ill, culminating in the passage of the guardian ad litem provisions of the Civil Practice Law and Rules (CPLR) in 1962. Part I also describes the provisions of the ADA that, as recently interpreted by the United States Supreme Court, guarantee equal access to courts for litigants with disabilities. Part II assesses the implementation and adequacy of the guardian ad litem provisions of the CPLR. It describes the obligation of a party to inform the court if the party is aware that ano...
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