Notes for Vicki's Oral Argument

[As our time before rebuttal was cut from twelve to eight minutes, at the court's request, Vicki edited her notes on the fly. The material in red was not spoken before the justices before rebuttal, to the best of Vicki’s memory.

[However, every excised passage had ample and full discussion in the written pleadings. Don’t despair that we excluded our best citations. And Vicki used some of the red in her two-minute rebuttal.

[Sitting were Ernst H. Rosenberger, principal justice, and Richard T. Andrias, Betty Weinberg Ellerin, Peter Tom, and Richard W. Wallach, associate justices.]

Appellate Division, First Department, New York
27 Madison Avenue, New York City
November 27, 2001, 2:00 p.m.

Good afternoon, your honors.

I am the pro se appellant Vicki Richman. This is Eileen Casey.

On its face, this case is about our succession to rent-control tenancy. But the issues go far deeper.

Putting aside for a moment our controversial inclusion of the ethics and motives of certain Columbia employees, we cite the Honorable Debra Silber in her lead sentence in Parras v. Ricciardi:

“In reading this decision, the Court suggests the members of the bar think of their grandparents, to better understand the Court's ire.”

Today we ask, Does a senior citizen – “an aged rent-controlled tenant,” in the words of the Appellate Term – have the right to the company and support of her family in her home of 60 years, even while she gets medical rehabilitation a few blocks away? Yes, certainly she does, anyone might answer. But suppose her family must live in the fear of eviction – how much does her right mean then?

A blown fuse caused my mother’s oxygen to fail. When she arrived at the emergency room, her doctor asked me, “Do you live with her?”

“Yes,” I said.

“Good,” the doctor answered. “I don’t want her living alone.”

But suppose I had answered, “I’m not sure whether I live with her. I might be evicted – my mother might be evicted – if I live with her.”

And that, of course, is exactly what happened, your honors. Columbia first tried to evict my mother, and failing that, went after us immediately on her death at home.

Although we lived with my mother for at least 27 months – and actually much longer – the Honorable Spears ruled that the time my mother spent in medical rehab should be subtracted from the time of our “residing with” her. The judge said it was “tolling the statute” to rule otherwise.

Nowhere in that very statute, 12 years ago, did the words “domestic partner” appear. Yet the Court of Appeals ruled that it would not toll the statute on succession to read the words “domestic partner” for the words “husband” or “wife.” (Braschi v. Stahl Assocs. Co.)

The Court was mindful of the 1937 admonition from People v. Ryan: “if the statute is ambiguous and two constructions can be given, the one must be adopted which will not cause objectionable results or cause inconvenience, hardship, injustice or mischief or lead to absurdity.”

We ask this court to interpret the statutory language “has resided with” to avoid this injustice and mischief: Driving away the families of the elderly. In fact, this court has already made that ruling in 1980, “the intended purposes of . . . rent control succession” are “to prevent the eviction of individuals with substantial ties to their home-apartment and to the former tenant of record.” (Rent Association v. Higgins.)

The Appellate Term in our case went further than the court below: “We note only that under the parties’ stipulation of fact,” wrote the justices, ”the aged rent controlled tenant must be deemed to have permanently vacated the apartment premises upon her hospitalization.” And, according to the justices, we stipulated to our eviction.

In ruling on an international treaty one hundred years ago, Mr. Justice Holmes wrote, “the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down.” (United States v. Whitridge.) The treaty had been produced by heads of state. What about a stipulation between landlord and tenant? Doesn’t our intent, our “general purpose,” count for something? What about the background, the context, the circumstances leading to our stipulation? Or are the justices correct to rule simply that we stipulated to be put on the street?

The fact is that my mother returned home. The fact is that the landlord stipulated to make the apartment habitable for her return. The landlord first reneged on that stipulation, followed by my mother’s massive stroke. The landlord finally complied with it, followed by my mother’s return, weakened by the stroke, but happy to be home.

A treaty cannot be read to rewrite history, says Mr. Justice Holmes. Shall the Appellate Term read our stipulation to rewrite the actual facts of this case, facts on file with the courts below?

That decision was no more than a summary judgment on primary residence. Mr. Justice Tom has written, “the primary residence law . . . should not apply to a senior citizen who . . . has no intention of abandoning her rent-regulated apartment.” (Soybel v. Gruber.) Mr. Justice Saxe has ruled that a judgment on primary residence requires “a factual matrix” built on many different “elements” shown by deposition and trial. (65 Central Park West, Inc., v. Greenwald.)

By their own words, the Appellate Term justices came up with its matrix from but a single element: our stipulation intended only to demonstrate our succession rights, not to prove my mother’s primary residence.

Mr. Justice Saxe has also ruled: “A deposition of the tenant would be unnecessarily burdensome and will not be permitted.” But the landlord in this case did indeed depose my mother. After that deposition, the landlord stopped pursuing her eviction and stipulated to repair the electrical system so that she could go home.

That evidence escaped the Appellate Term . . . and properly so . . . says our learned adversary . . . quite convincingly. It is in a mercantile landlord’s interest to use any legal means – any technicality – to suppress facts that might impinge on recovery of property.

But is our adversary’s client a mercantile landlord? Or is it a nonprofit, public-interest, academic center of the liberal arts and sciences, chartered by act of the state legislature two centuries ago?

The purpose of removing apartments from rent-control, as the Court of Appeals ruled in Herzog v. Joy, is “to alleviate the shortage of housing by returning underutilized apartments to the open marketplace.”

Will our adversary’s client return our apartment to the open marketplace? Not a chance! The university will rent it to faculty or students or other employees, at below-market rent, and will evict the new tenant as soon as the relationship ends. The rather remarkable case Harris v. Columbia demonstrates that. Statements by the officers show that Columbia protects tenants of other landlords from eviction, to protect diversity and affordable rent – to protect the community from the free market.

An eleemosynary institution is exempted from much of rent-stabilization. (Columbia v. James, Emergency Tenant Protection Act of 1974, §5a[6].) On the one hand, Columbia mines the rent law for any technicality, however vague and ambiguous, to get rid of us, and on the other hand claims protection from rent law for academic freedom.

Landlords suppress facts hostile to their property rights. To a scholar, a professor, suppression of facts is suppression of academic freedom. So, whom is our adversary representing: a landlord, or an academic institution?

That question was the heart of Harris. The majority of this court ruled that Columbia’s real-estate interest was separate and distinct from its academic interest. Columbia could not use university rules and ethics for a real-estate eviction. But the dissent insisted that property rights were subordinate to Columbia’s academic role. A tenant could indeed be evicted for purely academic transgressions.

The Court of Appeals upheld the dissent and overruled the majority.

Columbia is not a mercantile landlord. As an academic institution, Columbia must follow a standard of behavior that does not restrain other landlords. In ruling on this case, this court must be allowed to know whether Columbia followed its code. And, as a center for humanist and scientific inquiry, Columbia injures its own academic interest in using form to suppress vital fact.

Thank you, your honors.

Mr. Metz.

[That concluded our spoken address to the court. There were no interruptions. Following are our major citations, arranged by the arguments they support, for Vicki’s ready reference as she answered the court’s questions.]

Primary Residence

Sommer v. Turkel, Inc.

137 Misc.2d 7 (1987), 522 N.Y.S.2d 765.

Emay Properties Corp. v. Norton.

136 Misc.2d 127 (1987), 519 N.Y.S.2d 90.

65 Central Park West, Inc., v. Greenwald

127 Misc.2d 547, 550 (1985), 486 N.Y.S.2d 668.

Soybel v. Gruber

136 Misc.2d 430, 434 (1987), 518 N.Y.S.2d 920

Cohen and Zerenowitz Realty Corp. v. Asero

New York Law Journal, Nov. 21, 1991, p. 26, col.4.

Katz v. Gelman, 177 Misc.2d 83, 84 (1998), 676 N.Y.S.2d 774.

Village Development Associates LLC v. Walker,

______A.D.2d______ [1st Dept 2001], _______N.Y.S.2d________.

L.J.M. Venture No. 1 v. Joy

105 Misc.2d 291 (1980), 432 N.Y.S.2d 58.

Herzog v. Joy, 74 A.D.2d 372 [1st Dept 1980], 428 N.Y.S.2d 1

1665-75 Bryant Avenue Redevelopment v. Montgomery,

NYLJ, February 24, 1998, p. 25, c. 3.

9 NYCRR 2100.18.

9 NYCRR 2200.2(f)(18).

New York Election Law § 5-104.

Succession

Louis v. Barthelme.

179 A.D.2d 604 [1st Dept 1992], 579 N.Y.S.2d 656.

Berwick Land Corporation v. Mucelli,

249 A.D.2d 18, 18 [1st Dept 1998], 671 N.Y.S.2d 44.

Katz v. Gelman, 177 Misc.2d 83, 84 (1998), 676 N.Y.S.2d 774.

Shadick v. 430 Realty Co.

250 A.D.2d 417 [1st Dept 1998], 673 N.Y.S.2d 3.

Rakoff v. Hebert, NYLJ, June 5, 1998, p. 29, c.3

L.J.M. Venture No. 1 v. Joy

105 Misc.2d 291 (1980), 432 N.Y.S.2d 58.

Herzog v. Joy, 74 A.D.2d 372 [1st Dept 1980], 428 N.Y.S.2d 1

Classic Props. v. Martinez

168 Misc.2d 514 (1996), 646 N.Y.S.2d 755.

Classic Props. v. Martinez

168 Misc.2d 514 (1996), 646 N.Y.S.2d 755.

Rent Association v. Higgins

164 A.D.2d 283 [1st Dept 1990] 562 N.Y.S.2d 962.

1665-75 Bryant Avenue Redevelopment Associates v. Montgomery, NYLJ, February 24, 1998, p. 25, c. 3.

300 E. 34th St. Co. v. Habeeb.

248 A.D.2d 50 [1st Dept 1997], 667 N.Y.S.2d 16.

Brusco v. Rivera, NYLJ, September 9, 1999, p. 26, c. 1.

Westbeth Corporation v. Castagna.

NYLJ, June 19, 1996, p. 28, c. 6.

9 NYCRR §2204.6(d)1. 9 NYCRR 1727-8.2(a)(5) and 1727-8.3.

Local Emergency Housing Rent Control Act §5.

Dirty Hands and Court Errors

Harris v. Trustees of Columbia University.

98 A.D.2d 58 [1st Dept 1983], 470 N.Y.S.2d 368.

62 N.Y.2d 956 (1984), 479 N.Y.S.2d 216, 468 N.E.2d 54.

Parras v. Ricciardi

185 Misc.2d 209 (2000), 710 N.Y.S.2d 792.

Seagirt Realty Corp. v. Chazanof

Court of Appeals of the State of New York (December 30, 1963); 13 N.Y.2d 282 (1963), 246 N.Y.S.2d 613, 196 N.E.2d 254.

Stone v. Freeman, 298 N.Y. 268, 271 (1948), 82 N.E.2d 571.

M. Farbman & Sons, v. Columbia University,

 ___A.D.2d___ [1st Dept 2001],___N.Y.S.2d___.

McConnell v. Commonwealth Pic.

7 N.Y.2d 465 (1960), 199 N.Y.S.2d 483, 166 N.E.2d 494.

Cappadona v. State, 154 A.D.2nd 498, 546 N.Y.S.2d (2d Dep’t 1989)

300 E. 34th St. Co. v. Habeeb.

248 A.D.2d 50 [1st Dept 1997], 667 N.Y.S.2d 16.

CPLR 5015(a)3.

Columbia and Attorney Errors

Harris v. Trustees of Columbia University.

98 A.D.2d 58 [1st Dept 1983], 470 N.Y.S.2d 368.

62 N.Y.2d 956 (1984), 479 N.Y.S.2d 216, 468 N.E.2d 54.

M. Farbman & Sons, v. Columbia University,

 ___A.D.2d___ [1st Dept 2001],___N.Y.S.2d___.

Adar Co. LLC v. Snyder, NYLJ, July 9, 1997, p. 34, c. 6.

Samuel v. Villafane, NYLJ, July 29, 1998, p. 24, c. 5.

Trustees of Columbia University v. Kalvin

132 Misc. 601 (1928), 230 N.Y.S. 386.

Capital Resources V. Doe.

154 Misc.2d 864 (1992), 586 N.Y.S.2d 706.

Crooks v. Holcomb, NYLJ, February 28, 1996, p. 29, c. 4.

DiScala v. Facilities Development Corporation for the Office of Mental Retardation & Developmental Disabilities Staten Island Developmental Center. 180 Misc.2d 355 [1999].

Blackman v. Blackman.

131 A.D.2d 801 [2d Dept 1987], 517 N.Y.S.2d 16.

Wieder, appellant, v. Skala, et al., respondents, and Lubin, defendant, New York State Court of Appeals, 1 No. 25, December 22, 1992; 80 N.Y.2d 628, 609 N.E.2d 105, 593 N.Y.S.2d 752 (1992).

Raderman v. Talia Management Co.

170 Misc.2d 622 (1996), 651 N.Y.S.2d 850.

Trustees of Columbia University v. James.

127 Misc.2d 81 (1985), 489 N.Y.S.2d 669.

RPL7 §223-b., CPLR 5015(a)3, CPLR 78, CPLR 1024.

Emergency Tenant Protection Act of 1974, §5a(6)

Judicial Economy

General Realty v. Walters

136 Misc.2d 1027, 1028 (1987), 519 N.Y.S.2d 530.

Baijnauth v. City of New York

 ___A.D.2d___ [1st Dept 2001], ___N.Y.S.2d___.

O'Connor v. O'Grady, 143 A.D.2d 738 [2d Dept 1988].

Brunetti v. City of New York,

___A.D.2d___ [1st Dept 2001], ___N.Y.S.2d___.

McGann-Wayne v. Lippa.

___A.D.2d___ [1st Dept 2001], ___N.Y.S.2d___.

Kent Ae. Bk. v. NYC Bd.

___A.D.2d___ [1st Dept 2001], ___N.Y.S.2d___.

Legislative Intent

United States v. Whitridge, 197 U.S. 135 (1905).

People v. Ryan, 274 N.Y. 149 (1937).

Eck v. United Arab Airlines

15 N.Y.2d 53, 59 (1964), 255 N.Y.S.2d 249, 203 N.E.2d 640.

Braschi v. Stahl Assocs. Co.

74 N.Y.2d 201 (1989), 544 N.Y.S.2d 784, 543 N.E.2d 49.