Opinion
03-17-2017
Paul HOGNESTAD, Petitioner–Landlord, v. Lynne RABIDEAU, Respondent–Tenant.
John T. Keenan III, Esq. Albany, for Petitioner–Landlord. Lynne Rabideau, Pro Se.
John T. Keenan III, Esq. Albany, for Petitioner–Landlord.
Lynne Rabideau, Pro Se.
THOMAS MARCELLE, J.
Petitioner Hognestad ("landlord") brought a non-payment proceeding (RPAPL § 711[2] ). The petition alleged that Respondent Rabideau ("tenant"), who ran a barber shop, had failed to pay any rent for six months. At the return date of the petition, the court allowed the tenant to provide an oral answer to the petition (22 NYCRR § 210.7 ). Instead of answering, the tenant requested an adjournment to obtain counsel. The court granted the adjournment but admonished:
Under the law, we have to resolve this case in ten days unless there is a mutual agreement otherwise. So you are going to have to work very quickly to get counsel. [Counsel] is familiar with these cases. Call [him] today and advise him that the Judge has set an inflexible trial date in one week.
On the day of trial, the tenant explained she had contacted counsel just the prior day. There was a problem—counsel was engaged elsewhere and could not appear. Tenant's counsel had talked with the landlord's counsel to obtain consent for a further adjournment of the case. The landlord refused.
At the end of its regular session, the court held a conference in chambers to determine if a resolution was possible or whether an adjournment might be consented to. Neither could be achieved. The landlord took the position that he and his witnesses took time from work and he lacked the desire to absorb that cost again. Further, given the court's trial calendar, the next trial slot would be two weeks away which the landlord deemed too long to be acceptable in his effort to regain possession of his property.
The court took tenant's request for the adjournment under advisement. The court researched the matter and found a decision on point. In Carlton Assocs. v. Bayne, 191 Misc.2d 54, 740 N.Y.S.2d 785 (Sup.Ct., Kings County 2002), the identical fact pattern was presented—a pro se party seeking an adjournment beyond the ten-day limit in order to get counsel. The court held that judges have the inherent power to adjourn a case beyond RPAPL § 745(1)' s ten-day limit (191 Misc.2d at 59, 740 N.Y.S.2d 785 ); (see also Paladino v. Sotille, 15 Misc.3d 60, 62, 835 N.Y.S.2d 799 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2007] ) [citing Carlton Assocs. in reversing a trial court's decision not to grant an adjournment in a non-payment proceeding]. Despite this precedent, the court denied, in this case, the tenant's request for an adjournment.
It is no grand moment in judicial history when a court denies an adjournment; but neither is it a small thing to disagree with the learned ruling of another court. One of the most important roles of the judiciary is to articulate the logic behind its rulings. Courts distinguish, erode, adopt, adapt, harmonize and refine previous prior cases. These opinions, having been faithfully preserved by state and federal reporters for hundreds of years, provide the substance for advocates and judges to argue and reason. The judiciary's wonderful devotion to this cause allows the law to advance. Since this court's ruling disagrees with a decision dealing with the same issue, it is, therefore, incumbent upon it to explain why.
The crux of the problem resides in the time restraints which RPAPL § 745(1) imposes upon the trial of non-payment cases. RPAPL § 745(1) provides in relevant part:
At the time when issue is joined the court, in its discretion, may adjourn the trial of the issue, but not more than ten days, except by consent of all parties.
Whether a judge has the authority to adjourn a trial beyond the ten-day limit devolves into a twofold inquiry: (1) does § 745 permit a court, on its own accord, to adjourn non-payment proceedings beyond ten days and (2) if § 745 denies the ability of a court to grant such an adjournment, then does § 745 violate the separation of powers doctrine.
The answer to the first question turns on how § 745 is construed. In Carlton Assocs., the court "reject[ed] a literal reading of section 745(1) and [held] that section does not preclude the grant of an adjournment within [the court's discretion] beyond the 10 days prescribed by statute without the consents of the parties" (191 Misc.2d at 59, 740 N.Y.S.2d 785 ). For the reasons described below, the court cannot adopt such a construction of § 745.
Section 745(1) has two parts: (1) the proscriptive rule: the court may not adjourn the trial for more than ten days; and (2) the exception to the rule: unless all the parties consent. Each part of the statute needs to be examined in turn. First, the proscriptive part of the statute is cast in altogether definite terms. The legislature might well have composed the statute to say that non-payment cases be tried expeditiously. It did not; rather, the legislature chose a different route—it set a time limit, ten days. The court finds that when the legislature said ten days, it meant ten days.
The second part of the statute deals with the exception to the rule—a single exception—an extension beyond ten days requires consent by all parties. It could be argued that implied in all statutes (at least those dealing with procedural time frames) there exists an invisible yet inalterable exception that permits modification of deadlines when the ends of justice so require. In Carlton, the court found that this exception is implied given the inherent power of judges to control their calendars.
This court certainly accepts that such an exception exists in the case of scarce judicial resources. It may well be true on occasion that the court has more trials than trial slots over a ten day period. In which case, it would be impossible to hold a trial in ten days. The legislature cannot command a court to perform the impossible and is presumed not to have done so. Accordingly, courts have "the power to construe statutes as to rule out absurd and unexpected results." (Chatlos v. McGoldrick, 302 N.Y. 380, 388, 98 N.E.2d 567 [N.Y.1951] ). However, there should be no confusion on the limitation of this statutory canon-an exception can be created out of necessity but not for convenience. The justification to continue the case here, as in Carlton, was the unavailability of counsel, not the unavailability of a trial slot. Thus, under the present facts a statutory construction driven by necessity should not be employed.
The principle applicable here is the paramount rule that the judiciary should construe laws to animate the intention of the legislature. The starting point for discerning that intent is the language of the statute (Yatauro v. Mangano, 17 N.Y.3d 420, 426, 931 N.Y.S.2d 36, 955 N.E.2d 343 [2011] ). The words of the statute and what those words convey, in context, is what the statute means. And where, as here, a statute is unambiguous, the courts must give effect to its plain meaning (People v. Brown, 25 N.Y.3d 247, 250, 10 N.Y.S.3d 500, 32 N.E.3d 935 [2015] ).
Section 745's exception to the proscriptive rule is crystal; the power to adjourn a trial beyond ten days requires the consent of all parties. Again, the legislature could have chosen to allow an adjournment where justice so required. The legislature knows how to employ such exception—and frequently does—but it did not here. Thus, the court is left to conclude that the legislature knowingly chose to deprive judges of the power to adjourn a case without the consent of all parties.
For example, the legislature enacted CPLR §§ 2201, 2004 which both expressly empower judges to stay, adjournment and extend proceedings as may be just with one proviso, which is applicable here, that no adjournment can be made if it is "otherwise prescribed by law." (Cf. Matter of Brusco v. Braun, 84 N.Y.2d 674, 681, 621 N.Y.S.2d 291, 645 N.E.2d 724 [1994] ).
Having concluded that § 745 fails to permit a judicial exception to the ten-day limit, the court begins a new inquiry—whether the legislature impermissibly invaded the providence of the judiciary by limiting a judge's ability to adjourn a case. This is a separation of powers issue.
It could be suggested that the Court read the statute in a non-literal way to avoid reaching the constitutional question (see Totaram v. Cordero, 2003 N.Y. Slip Op. 50663(U), 2003 WL 1904081 [Civ.Ct., Kings County 2003] ). Indeed, the cannons of statutory construction commend that a court construe an ambiguous statute to avoid a constitutional question (Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 561–62, 132 S.Ct. 2566, 2593, 183 L.Ed.2d 450 [2012] ). Here, the court has found the exception clause of § 745(1) unambiguous and therefore any reliance on the constitutional avoidance cannon would be improper (see Scalia & Garner, Reading Law: The Interpretation of Legal Texts § 38 at 247–48 [1st ed. 2012] ).
The court is not fond of this doctrine. While the doctrine has many thoughtful defenders, it is, at its core, just an alluring invitation to judicial mischief. Instead of doing what the judiciary should do, say whether a legislature lawfully exercised its power (under a straight forward reading of the statute)-judges get to reshape statutes because one interpretation of the law raises in a judge's mind "serious" constitutional questions-an altogether boundless adventure to be sure. Moreover, this ability to recast laws comes with the pleasant side effect of permitting a court to skip the burden of making tough and sometimes uncomfortable constitutional decisions.
Although the doctrine does not appear as such in the State Constitution, separation of powers has "deep, seminal roots in the constitutional distribution of powers among the three coordinate branches of government" (Cohen v. State, 94 N.Y.2d 1, 11, 698 N.Y.S.2d 574, 720 N.E.2d 850 [1999] ). The Constitution gives each branch distinct roles: The legislative branch creates the law, the executive branch enforces the law, and the judicial branch interprets the law and decides cases and controversies that arise under the law. When one branch disrupts the ability of the other branch to carry out its function, the separation of powers principle is implicated. The courts are "the final arbiter of true separation of powers disputes" (Id. ).
The Carlton case nicely prosecutes the argument that § 745 violates the separation of powers. The argument goes that while the legislature sets the rules for litigation, its authority has limitations. In particular, the rules set by the legislature may not trespass upon a court's core decision making power. This core power includes the discretion to grant an adjournment for a party to get a lawyer. Nothing enhances the truth finding function (which after all is part and parcel of deciding a case) more than dueling advocates. Given this rather large benefit, the court concluded that "it is not competent for the legislature to preclude absolutely the granting of an adjournment in all cases regardless of the circumstances" (191 Misc.2d at 59, 740 N.Y.S.2d 785 ).
This is a fair analysis but it misses the point. The analysis is built upon the implicit assumption that § 745's ten day limit is a mere litigation rule. In most simplistic terms, legislatures enact two types of law. Substantive laws which grant rights, impose duties or proscribe actions and process laws which govern how litigation is conducted. This court believes that a ten- day limit is better viewed as a substantive law, which makes all the difference in the outcome of the case.
This belief is predicated upon the history that brought RPAPL article 7 (a summary proceeding) into existence. The summary recovery of real property was first authorized in New York in 1820 ( [1820] N.Y. Laws ch. 194). Prior to 1820 the only remedy which a landlord had to recover possession of property was an ejectment action—which was "an expensive and dilatory proceeding, which in many instances amounted to a denial of justice" (Reich v. Cochran, 201 N.Y. 450, 453–54, 94 N.E. 1080 [1911] ). Significantly, delays caused social breakdowns by "prompt[ing] landlords to short circuit the judicial process by resort to self-help" (Velazquez v. Thompson, 451 F.2d 202, 204 [2d Cir.1971] [internal quotations omitted] ). Therefore, non-payment summary proceedings provided an important "right of the landlord to the immediate possession of his real property" (Poulakas v. Ortiz, 25 Misc.3d 717, 724–25, 885 N.Y.S.2d 865 [Civ.Ct., Kings County 2009] [internal citation and quotations omitted] ).
Moreover, it seems not to be a coincidence that the summary proceeding takes less than a month—generally the quantum of time in which property is rented. The longest time between demand for rent and the eviction of the tenant, if the statute is followed as written, is 28 days. Thus, RPAPL article 7 provides assurance to landlords that they will lose no more than one month's rent. Given that article 7 sprung to life to avoid prolonged litigation which in some cases triggered the undesirable side effect of self-help, the time to evict a non-paying tenant is sacrosanct and the ten-day limit of § 745 is an essential part of keeping the process under a month.
The timeline break downs as follows: there must be a 3 day demand for rent (RPAPL § 711[2] ); after the expiration of 3 day rent demand, RPAPL § 733 mandates that a special proceeding made be brought upon no less than 5 days and no more than 12 days notice. Once the action is before the court, trial must be held within ten days of the first appearance (RPAPL § 745[1] ). Finally, should a judge find for the landlord and issue a warrant of eviction, the earliest that a city marshal may eviction a tenant is 3 days after the warrant is issue (RPAPL § 749 [2 ] ). Thus, the minimum time for landlords to take re-possession of their property is 12 days and a maximum time of 28 days.
No doubt that the time constraints imposed by § 745 affects litigation outcomes. Nevertheless, legislatures enact laws that hamper the adversarial system from getting to the truth. This is not because truth in litigation is not an unimportant goal, but rather the legislature considers other societal goals greater. In particular, when life, liberty and property rights are at issue, the legislature at times places strict deadlines on the judicial system, even if such time constraints lead to an injustice in a particular case. Here § 745 makes time (in the context of the recovery of property) more important than accuracy in litigation.
For example, the law of privilege keeps facts (like communications between a husband and wife or between a priest and penitent) from fact finders. Although such evidence may be highly relative to, if not dispositive of a case, the protection of the relationship trumps reaching of the right result at trial.
Based upon the history of RPAPL article 7, the court finds that § 745(1)'s ten-day limit is not so much a procedure law as it is a property right. Here the time line created by RPAPL article 7 (of which § 745(1) is an essential element) neither dictates the outcome of the case nor improperly intrudes upon the court's decision making function. Consequently, § 745(1) is constitutional as applied in this case. Since the landlord did not consent to the tenant's request for an adjournment beyond the ten-day limit, the court denies the request.