Open Letter to Judge Kaye

The following letter was written to Judge Kaye, who assured it would be circulated to the Appellate Division. I never heard anything again.

February 2, 2005

Hon. Judge Judith S. Kaye

Chief Judge

Court of Appeals

Court of Appeals Hall

20 Eagle Street

Albany, NY  12207-1085

Re:  Inequities in the Law

Dear Judge Kaye:

     I am an attorney who has been at the bar for some 41 years.

     I have elected to address you in this letter because I wish to point out some inequities in the law which visit various deprivations upon litigants who are subject to judicial and administrative process.

     While my practice these days is principally as a lawyer representing tenants before the court and administrative agencies the issues that I am going to discuss in this letter transcend all aspects of litigation.  My objective is to look for remedy which would level the playing field in the following areas:

A.  Court Days versus Calendar Days

     The first inequity which I point out to the Court is suffered by tenants in summary proceedings in terms of the notice of petition which must be answered in five days.  In most instances two of those five days are consumed by a weekend.  And, if Monday turns out to be a holiday then three days are consumed of the five days.  This leaves the litigant served with this process a most unreasonable period of time to address the courts.  I believe that the time has come for courts to realize that the use of calendar days and even business days is inherently unfair and that the only way to give fair and equal opportunity is to count court days (I define “court days” as those days that the court is open for business).

B.  Taking an Appeal to an Appellate Term in New York City

     If a litigant resides in the First Department, who is not considered a pauper, that litigant must comply with the rules of the Appellate Term First Department in order to perfect his or her appeal.  By example, I know of a case where a tenant had to appeal from a ten-day trial.  This entailed the following:

The ordering of the transcripts at a cost of some $1,500

       b)   Spending some 50 hours putting the record together, labeling each document including approximately 100 exhibits.

       c)   With the reproduction costs of a four volume record multiplied by seven copies the cost of her producing the record would have been close to $6,000 including the aforedescribed transcripts.

     Had this litigant been able to afford a professional printer the reproduction of the record exclusive of the cost of the transcript would have cost an additional $4,000.  The litigant was able to save the difference by undertaking the task herself and only did this expending all her personal time and taking unpaid leave from her job because she did not have the additional money for the professional printer.

     I now inform the court that had the appeal been to the Appellate Term (Second and Eleventh Judicial Districts), the record would have been perfected when:

           a)   the litigant would have secured the transcripts for the $1,500 costs

           b)   the transcripts and file would have been sent to the Appellate Term

           c)   the original exhibits would have been sent to the Appellate Term

           d)   the appeal would have been heard on the original record.

     In short, the litigant in the Appellate Term (Second and Eleventh Judicial Districts) would have not have had to produce twenty eight volumes with detailed table of contents with labeling as to each document in the record, etc.

     As an experienced Appellate lawyer, when I started practicing, the manner in which records and briefs were produced were viewed as a rational, necessary procedure because in the Appellate Divisions and the Court of Appeals the multiple copies were necessary to be placed in the Cases and Points and distributed to designated libraries throughout the state.  Although Appellate terms, as far as I know, never distributed, they nevertheless appeared to have imitated many of the requirements of the Appellate Division in setting out what was necessary for an appeal.  The Appellate Term First Department still has not seen fit to in any way modify its procedure.

     Today there is no reason for these disparate arcane procedures except to give work to professional preparers or because some courts wish to build such a mountain of procedure as to discourage all but the fully determined litigant.  Whatever the reason, it should be deemed unacceptable.  Today, all appeals in the Appellate Term should be heard on the original record.  As to the Appellate Divisions since Cases and Points are now on microfiche, copies of the record can be streamlined in their procedures.  This should be reviewed in terms of reducing expenses and making it more convenient for the litigants to have access to the Appellate Courts.

C.  Being Allowed to Take an Appeal

     There is something else that is unfair and incongruous in the appeal process.  It is my understanding that the New York State Constitution provides for an appeal as of right to either the Appellate Term or the Appellate Division.  If a litigant has a money judgment against him or her that litigant by filing a bond can assure that he or she will have the opportunity to perfect and be heard on the appeal.  However, where a tenant needs to appeal from a judgment of possession or a litigant has to appeal from something other than a money judgment and needs a stay pending appeal, the Appellate Term or the Appellate Division by simply refusing the stay for all practical purposes determines whether an effective appeal is to be heard.  If the stay is denied to a tenant and the tenant suffers eviction, the right to then go forward on an appeal becomes next to worthless.  The court, in fact, against the promise of the state constitution has acted as a court which grants leave or denies leave when it rules on the stay application.  This is wrong and unfair.  The law will only be consistent with an appeal as a right when the Appellate Court is mandated to grant a stay in all cases allowing that stay to be issued upon reasonable conditions that would assure the right of the appellant to go forward with an effective appeal.

D.  An Agency Should Be Heard

     Agencies such as the DHCR are supposed to interpret and construe its own policies and regulations.  And once they do so, the avenue of review is usually an Article 78.  However, many times private litigation goes forward which involves the interpretation and construction of the codes and policies of the agency without the agency knowing of the litigation.  I would most respectfully suggest that in such circumstances the court that is going to review an agency’s regulation or policy should be mandated to invite the agency into the litigation at any level so that the agency’s position will be made known to the court.  It is submitted that hearing the position of the agency before a court makes a determination as to the meaning of the regulation or policy can only be beneficial for all concerned.

E.  Xerox fees

     Pro se tenants, especially, experience serious disparity in the fees they have to pay to use copying machines in the various clerks' offices.   Some counties have same available for as little as ten cents per copy while in other courts the litigant must pay twenty-five cents per copy.

F.   Ombudsman

     Finally, it is time for both the legislature and the judiciary to understand and appreciate that many times disparity of law continues to fester because litigants, especially in the area of administrative law, do not have the resources to successfully prosecute appeals.

     The remedy here is for the legislature and/or the judiciary to create an ombudsman who should have the power to monitor the law and to act before the Court in the public interest to assure uniformity where appropriate and prompt adjudicated determination before your Court upon his or her certification of necessity.

     This, of course, cannot be accomplished by the Attorney General of the State of New York who is mandated to defend the constitutionality and the conduct of administrative agency, the statutes, etc.  It is submitted that the creation of such office will go a long way to rendering effective justice.

Conclusion

     I have here attempted to identify and suggest remedy for some disparities which I have encountered in my practice.  In doing so, I have by no means compiled an exhaustive list.  I am certain that there remains many more that I have yet to observe and address.

     But that is the point.  The government must become proactive and look for such comparable complaints as any inequity in the treatment of litigant or applicant that cannot be justified can lend to injustice.

Respectfully yours,

Robert A. Katz