Civil Court of the City of New York, Bronx County, January 1, 2019

The Bronx Defenders (Adam Shoop of counsel) for Sheila Galarce, respondent.

Jason D. Boroff & Associates PLLC (David Lee of counsel) for petitioner.

After oral argument, the decision and order on this motion is as follows:

In May 2018, at the behest of the Bronx District Attorney's Office, petitioner commenced this holdover proceeding against Sheila Galarce (respondent) and George A. Gomez, Julio Villanueva, Jane and John Doe as respondents-undertenants, pursuant to sections 711 (5) and 715 (1) of the Real Property Actions and Proceedings Law, Rent Stabilization Code (9 NYCRR) § 2524.3 (d), the parties' lease agreement, and its corresponding riders. Petitioner alleged [*2]that the subject apartment was being used for the illegal trade and sale of controlled substances.^[FN1]

Because the premises are undisputedly located in zip code 10457,^[FN2] the Clerk of the Court should have assigned the petition to Housing Part K pursuant to the Office of Court Administration's implementation of the recently enacted Universal{**62 Misc 3d at 1038} Access to Counsel law (UAC). (See Administrative Code of City of NY §§ 26-1301—26-1305.) In Part K, upon referral to the designated UAC organization of the day, respondent, who is income eligible^[FN3] and who wanted to be represented by counsel, would have received full representation by an attorney, regardless of the merits of her case.^[FN4] By mistake, respondent's case was assigned to Housing Part E, a special part that has the ability to refer any case to the Legal Aid Society, Housing Help Program. However, the Housing Help Program is not required by statute or contract to provide a referred tenant with full representation.

On the first court date of June 7, 2018, the parties entered into a stipulation adjourning the proceeding for trial and for respondent to seek counsel. The file jacket also indicates that on June 7, 2018, a referral was made in the courtroom to the Legal Aid Society (Housing Help Program), and separately to the Universal Access to Counsel provider for the day. Respondent was erroneously turned away by the designated UAC provider. Thereafter, respondent also attempted to retain Bronx Legal Services, as well as the services of a private attorney. (Aff of respondent at 5.) On July 12, 2018, respondent pro se signed a stipulation agreeing to vacate the premises by September 31, 2018. Despite numerous attempts between the first court date and when she ultimately entered into a stipulation agreeing to permanently vacate her rent-stabilized apartment, respondent was unable to retain a lawyer, even though she was entitled to representation. (Aff of respondent at 3-7.)

Respondent, now represented by Adam Shoop, Esq., of The Bronx Defenders, moves to vacate the stipulation on the{**62 Misc 3d at 1039} grounds that (1) she was deprived of her right to counsel which she was entitled to by law, that (2) she unadvisedly entered into the agreement because she did not sell drugs in the apartment and did not know that the petitioner had the burden of proving at trial that she knew of or acquiesced to the customary and habitual use of the apartment for illegal drug trade, and because (3) she requires a guardian ad litem to help her adequately defend her rights in this proceeding. In the alternative, respondent moves for a stay to enable her to move with her Special Eviction Prevention Supplement (SEPS) voucher which she obtained three years ago upon her exit from the shelter system.

Petitioner opposes on the bases that (1) not having counsel is not on its own grounds to vacate a stipulation, and that (2) respondent has not actually articulated that she has a defense to the proceeding in that she does not aver that she did not know or acquiesce to the drug activity in the apartment, only that she did not sell drugs in the apartment.^[FN5] In reply, respondent's attorney reiterates that respondent was entitled to an attorney and did not secure counsel despite numerous attempts to do so. As a result, respondent argues, she unadvisedly entered the July 12, 2018 stipulation because she was unaware that petitioner bears the burden of proving at trial, and potentially a jury trial, that the subject premises were customarily and habitually used for illegal drug trade and that she should have known of or acquiesced to the illegal activity.

After careful consideration of the arguments, and bearing in mind the salutary tenets underlying the Universal Access to Counsel law, as well as the challenges that administrators, legal services providers, judges, and attorneys face as this new law is implemented over time, the court renders this decision which is limited to the unique facts and circumstances of this case.{**62 Misc 3d at 1040}

Vacatur of Stipulations

It is well-settled that stipulations of settlement are favored by the courts and are not lightly cast aside. (See Hallock v State of New York, 64 NY2d 224 [1984].) Adherence to this rule not only allows efficient dispute resolution but maintains integrity of the litigation process. (Id. at 230; Campbell v Bussing, 274 App Div 893, 893 [2d Dept 1948] [holding that a "stipulation will not be destroyed without a showing of good cause therefor, such as fraud, collusion, mistake, accident, or some other ground of the same nature"].) However, courts maintain the discretionary power to relieve a party of an agreement "if it appears that the stipulation was entered into inadvisedly" or will "take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to [its] prejudice." (Matter of Frutiger, 29 NY2d 143, 150 [1971] [internal quotation marks and citations omitted].) "[T]he discretion of a court is not that closely confined [to the grounds commonly cited]" and an unjust stipulation should be vacated when the parties may be returned to their former status. (Solack Estates v Goodman, 102 Misc 2d 504, 506 [App Term, 1st Dept 1979], affd 78 AD2d 512 [1980].) In 144 Woodruff Corp. v Lacrete (154 Misc 2d 301, 302 [Civ Ct, Kings County 1992]), the court [*4]stated that, while lack of representation is not sufficient in and of itself to vacate a stipulation, "[a] party's lack of representation at the time of entry into the stipulation is a significant factor to be considered in determining whether good cause exists to vacate the stipulation."

These seminal cases, all written in a time when there was no Universal Access to Counsel law, and all so often cited for the propositions that stipulations must be vacated for "good cause," or when the agreement takes the case "out of its due and ordinary course," or is "unadvisedly entered into," or "some other ground of the same nature" are read by the court in this decision within the context of the Universal Access to Counsel law, and in light of the evolving and inevitable new reality of Housing Court.^[FN6]

{**62 Misc 3d at 1041}The Universal Access to Counsel Law

The lack of tenant-representation in Housing Court has long been a significant concern. Almost three decades ago, the Committee to Improve the Availability of Legal Services,^[FN7] in its Final Report to the Chief Judge of the State of New York, espoused that

"the imbalance between the need for legal services and their availability undermines the legitimacy of the legal system itself. It is grotesque to have a system in which the law guarantees to the poor that their basic human needs will be met but which provides individuals no realistic means with which to enforce that right. . . . When the stakes of legal representation versus no representation at all to an indigent tenant run as high as the difference between having a home and being homeless, and when this harsh outcome could be easily averted by the mere courtroom presence of a lawyer on the tenant's behalf, then the denial of counsel undercuts the basic ideals of justice that our society proclaims." (Committee to Improve the Availability of Legal Services, Final Report to the Chief Judge of the State of New York, 19 Hofstra L Rev 755, 775 [1990].)

This report substantially confirmed the findings made two years earlier of the Committee on Legal Assistance of the Association of the Bar of the City of New York that the "provision of counsel to persons facing eviction constitutes the single indispensable reform required in the Housing Court." (144 Woodruff Corp., 154 Misc 2d at 305 [emphasis omitted], quoting Housing Court Pro Bono Project, part I at 36 [June, Nov. 1988] [unpublished manuscript].)

In 2013, three decades later, this issue remained front and center of the Housing Court community's consciousness. Then-Citywide Supervising Judge of the Housing Court Hon. Fern Fisher noted at a conference entitled "New York City's Housing Court at 40: Controversies, Challenges, and Prospects for the{**62 Misc 3d at 1042} Future" organized by the Association of the Housing Court Judges, the New York University Furman Center for Real Estate and Urban Policy and the New [*5]York City Bar Association that "[t]enants are 98-99% unrepresented while 80% of owners have legal representation."^[FN8] This inverse correlation was echoed by the Office of the Mayor in 2016.^[FN9] Illustrating the consequences of the imbalance, a 2016 report of the New York City Office of Civil Justice found that "unrepresented tenants were more than four times as likely to have a warrant of eviction issued in their case compared to represented tenants (44.1 percent of unrepresented compared to 10.0 percent of represented)."^[FN10]

Between 2013 and 2017, due to the efforts of troubled judges and court administrators, dedicated politicians, scholars, advocacy groups, and bar associations, New York City substantially increased funding to enable low-income tenants to receive legal services in order to even the playing field in Housing Court. By 2017, residential evictions by City marshals had declined by approximately 27% as compared to calendar year 2013 and an estimated 70,000 New Yorkers remained in their homes as a result of the decreased evictions.^[FN11] Of the Housing Court cases resolved in New York City fiscal year 2018, tenants receiving the services of Office of Civil Justice legal services providers were able to remain in their homes in 84% of cases citywide.^[FN12]

Against this shifting landscape, enter the Universal Access to Counsel law, also commonly known as the "right to counsel" {**62 Misc 3d at 1043}in Housing Court, and "civil Gideon." Intro 214-B was passed into law on August 11, 2017, making New York City the first city in the country to ensure that every eligible tenant can receive the benefit of full representation by an attorney in an eviction proceeding. (Local Law No. 136 [2017] of City of NY.) Because of the obvious challenges of implementation, and the lessons learned in the aftermath of Gideon v Wainwright (372 US 335 [1963] [finding that the Sixth Amendment right to the assistance of [*6]counsel extends to state criminal proceedings]),^[FN13] UAC is being phased in over five years and, as of this date, is supposed to be operating in 20 zip codes across New York City's Housing Courts. (See n 2, supra.) UAC is based on established data depicting a fundamental imbalance of power in Housing Court, and the statistically supported principle that full representation by an attorney makes a quantifiable and qualitative difference for poor tenants in the outcome of proceedings in Housing Court. Through UAC, eligible tenants are guaranteed full representation in Housing Court, regardless of the merits of their case, a model akin to that of public defenders for criminal cases.^[FN14]

In the last quarter of 2018, 30% of all tenants in Housing Court retained counsel. (Universal Access to Legal Services: A Report on Year One of Implementation in New York City at 4.) In the UAC zip code parts, 56% of tenants were represented by a lawyer.^[FN15] In a litigation world where a 2001 study found that represented tenants in New York City have judgments against them 32% of the time versus 52% of the time when they are not represented,^[FN16] and a randomized controlled trial conducted by the Boston Bar Association and Harvard Law School found{**62 Misc 3d at 1044} that "low-income tenants with counsel win their cases 67 percent of the time, compared with only 30 percent for those without a lawyer,"^[FN17] the significance of having counsel in Housing Court cannot be discounted. The premise is becoming a promise, and, while still in its nascent stages, it appears from the data gathered prior to and after the passage of UAC that the new law is well on its way to realizing its anticipated impact by 2022. Anecdotally, in a New York Law Journal article from September 2018, Hon. Jean Schneider, the citywide supervising judge of the New York City Housing Court, noted that "[t]here is a history in Housing Court of attorneys pressuring tenants to settle a case outside the courtroom—literally in the hallway . . . . The [*7]program has [already] improved the litigation process both in and outside the courtroom."^[FN18]

Respondent clearly wanted an attorney in this proceeding (aff of respondent at 3-7), and was entitled to one by law. However, due to administrative error her case was assigned to the wrong courtroom, and, for unclear reasons, the UAC provider designated and required to take eligible cases referred to it on that day did not accept the case for full representation, or, according to respondent's affidavit, provide her with substantive legal advice. (Aff of respondent at 4.)

In light of the implementation of UAC and the data supporting its remedial effects, this court cannot hold that representation by an attorney would not have altered the course or the outcome of this proceeding in some meaningful way for the respondent. Indeed, to hold respondent to this stipulation in the context of the Universal Access to Counsel law would take the{**62 Misc 3d at 1045} case out of the due and ordinary course of today's Housing Court where respondent was entitled to litigate her case with the benefit of full representation by an attorney.^[FN19]

Vacatur of the stipulation supports the integrity and balance that the Office of Court Justice is charged by law with bringing to litigation in Housing Court. In her unrefuted affidavit, respondent states that, after speaking with an attorney for the petitioner, she was left with the impression that she "had to leave the apartment" and that she signed the agreement offered by the petitioner's attorney because she felt she "didn't have a choice," and might find herself in "more trouble" if she did not sign the stipulation. (Aff of respondent at 8-9.) This is precisely the type of scenario described by Hon. Jean Schneider in her interview for the New York Law Journal article. As the 144 Woodruff Corp. v Lacrete court opined, "th[is] court cannot permit itself the illusion, comforting though it might be but which our own Chief Administrators have rejected, that settlements in Housing Court are generally the result of arm's length transactions between parties of equal bargaining power." (144 Woodruff Corp., 154 Misc 2d at 308.)

As there is no averment of ongoing drug activity, respondent credibly states that she is currently compliant with an outpatient program to deal with her addiction, and respondent continues to receive a SEPS subsidy for the rent, there is limited prejudice to petitioner if the stipulation is vacated and petitioner is required to prove its case at trial. On the other hand, respondent is in immediate danger of losing her home under the terms of a stipulation to which she agreed without the benefit of an attorney despite her entitlement to full representation in this proceeding.

Accordingly, respondent's motion to vacate the stipulation is granted, and the parties are returned to the status quo. Any judgments and warrants entered against nonmoving respondents remain in full force and effect. This proceeding is transferred to the UAC part servicing respondent's zip code for consideration of the remainder of her motion.

"The term 'full legal representation' means ongoing legal representation provided by a designated organization to an income-eligible individual and all legal advice, advocacy, and assistance associated with such representation. Full legal representation includes, but is not limited to, the filing of a notice of appearance on behalf of the income-eligible individual in a covered proceeding." (Administrative Code § 26-1301.)

Footnote 5:At a trial, the petitioner would have the burden to prove "by a preponderance of the credible evidence that the subject premises were used to facilitate trade in drugs and that the tenant knew or should have known of the activities and acquiesced in the illegal drug activity in the apartment." (855-79 LLC v Salas, 40 AD3d 553, 554 [1st Dept 2007], citing 1895 Grand Concourse Assoc. v Ramos, 179 Misc 2d 508, 511 [Civ Ct, Bronx County 1998].)

Footnote 6:"From the perspective . . . [of] a judge who is proactive in the pursuit of justice . . . [t]he greatest threat to the pursuit of justice . . . is the desperate need for legal services by the poor and people of modest means." (Hon. Jonathan Lippman, Shifting the Landscape on Access to Justice, 38 Cardozo L Rev 1159, 1159 [2017].)

Footnote 7:The Committee to Improve the Availability of Legal Services was a 22-member committee appointed in 1988 by then-Chief Judge of the State of New York Sol Wachtler comprised of a broad cross section of the New York legal community, including legal services providers, academics, public officials, and private practitioners from small and large law firms throughout the state to "review information and to report on the extent of the unmet need for civil legal services for the State's poor." (Committee to Improve the Availability of Legal Services, Final Report to the Chief Judge of the State of New York, 19 Hofstra L Rev 755, 763 [1990].)

Footnote 8:New York City's Housing Court at 40: Controversies, Challenges, and Prospects for the Future at 11, available at https://s3.amazonaws.com/documents.nycbar.org/files/2007336-NYC_Housing_Court_at_40_HOUCOURT_3.11.13.pdf (last accessed Dec. 29, 2018).

Footnote 9:Press Release, The City of New York, Office of the Mayor, City Report Reveals Major Increase In The Number Of Tenants In Housing Court Who Have Legal Representation (Aug. 30, 2016), available at https://www1.nyc.gov/office-of-the-mayor/news/698-16/city-report-reveals-major-increase-the-number-tenants-housing-court-who-have-legal#/0 (last accessed Dec. 29, 2018) (referring to the 2013 report).

Footnote 10:New York City Office of Civil Justice 2016 Annual Report at 45, available at https://www1.nyc.gov/assets/hra/downloads/pdf/services/civiljustice/OCJ%202016%20Annual%20Report.pdf (last accessed Dec. 29, 2018).

Footnote 11:Testimony of Jordan Dressler, Civil Justice Coordinator Before the New York City Council's Committee on the Justice System, HRA's Fiscal Year 2018 Preliminary Budget (Mar. 12, 2018), available at https://www1.nyc.gov/assets/hra/downloads/pdf/news/testimonies/2018/FINAL%20OCJ%20Testimony_03122018_OCJ.pdf (last accessed Dec. 29, 2018).

Footnote 12:Office of Civil Justice, New York City Human Resources Administration, Universal Access to Legal Services: A Report on Year One of Implementation in New York City (fall 2018), available at https://www1.nyc.gov/assets/hra/downloads/pdf/services/civiljustice/OCJ-UA-2018-Report.pdf (last accessed Dec. 29, 2018).

Footnote 13:Andrew Scherer, New York City's "Universal Access" Legislation: One Giant Leap for the Civil Right to Counsel, 31 Management Information Exchange Journal, No. 3 at 32, 33 [fall 2017], available at http://www.nyls.edu/impact-center-for-public-interest-law/wp-content/uploads/sites/140/2017/12/2017-fall-MIE-Journal-AS-RTC-article.pdf (last accessed Dec. 30, 2018).

Footnote 14:Vicki Been, et al., NYU Furman Center, Implementing New York City's Universal Access to Counsel Program: Lessons for Other Jurisdictions at 5 (Dec. 2018), available at http://furmancenter.org/files/UAC_Policy_Brief_12_11-18.pdf (last accessed Dec. 30, 2018).

Footnote 15:Rates varied across the boroughs, with Staten Island exhibiting the highest legal services rate at 77%, followed by Brooklyn at 72%, Manhattan at 61%, the Bronx at 52%, and Queens at 41%. (Universal Access to Legal Services: A Report on Year One of Implementation in New York City at 4.)

Footnote 16:Caroll Seron, et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City's Housing Court: Results of a Randomized Experiment, 35 Law & Socy Rev 419, 427 (2001).

Footnote 17:Permanent Commission on Access to Justice, Report to the Chief Judge of the State of New York (Nov. 2015), Appendix 7, Transcript of the Chief Judge's Hearings on Civil Legal Services on Sept. 29, 2015, Testimony of Eric Weingartner, Managing Director, Robin Hood Foundation at 60, available at http://ww2.nycourts.gov/sites/default/files/document/files/2018-04/2015_Access_to_Justice-Appendices.pdf (last accessed Dec. 30, 2018); see also Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012), available at https://www.bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf (last accessed Dec. 30, 2018).

Footnote 18:Dan M. Clark, Increasing Tenants' Access to Counsel Has Raised Court Efficiency, Fairness, Judges Say (Sept. 24, 2018), available at https://www.law.com/newyorklawjournal/2018/09/24/increasing-tenants-access-to-counsel-has-raised-court-efficiency-fairness-judges-say/ (last accessed Dec. 30, 2018).

Footnote 19:This court need not embark on an in-depth analysis of respondent's demonstration of potentially meritorious defenses to this proceeding because respondent was entitled to an attorney regardless of the merits of her case.