Legal Myths v. Reality
by Judge Joan Shkane
This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.
MYTH: New York State law provides only one way to evict a tenant who does not pay rent or otherwise does not follow the law in ways that badly affect the property rented.
REALITY: New York has two ways to evict an undesirable tenant. (This does not apply while under the moratorium on eviction for non-payment of rent during the pandemic). The first way is through a Housing Court proceedure or a local justice court. The Housing Court procedure is a relatively inexpensive and quick procedure. In our area, evictions are most likely handled through the three city courts, or in justice (town) courts. A second way under the law is through a common law procedure called an ejectment action. The case must be brought in Supreme Court. It differs in important ways from the justice court procedure. One difference is that the cost in Supreme Court starts with $210.00 to purchase an index number under which the case will be filed. It will usually require an attorney to draw up the papers, and to participate in discovery. This is the procedure wherein each side must tell the other side what each intends to prove, in detail. Discovery can add to attorney fees. Another difference between the two procedures is that in a Supreme Court proceeding city marshals do not physically conduct the eviction, unlike in a city court procedure. The eviction is done by sheriffs. It all becomes a more complicated procedure because the whole case must be handled with formality. Although the Supreme Court route can be slow and expensive, if the tenant owes more than $25,000.00, Supreme Court can award a monetary judgement instead of possession of the property. This cannot be handled in justice court. Sometimes the Supreme Court option is attractive, especially if the tenant has left the property in the meantime, and therefore eviction is not requested, but compensation is.
MYTH: A court will examine only a few facts in determining custody of a child.
REALITY: Many factors can go into a decision on custody. Some of them are traditional facts, another is new. Some of the questions a court will try to find the answers to are the following: how does each party ( parents and each child) conduct itself during the lawsuit, and during the trial; does each party follow court orders regarding the children; does a parent try to prejudice or alienate the child against the other parent; does a parent try to weaponize the child by withholding visitation, invitations or knowledge of the child’s school or extracurricular activities; does a parent withhold child support payments; does a parent use the child as a messenger for child support or other occurrences; is there dependable structured parental access and is it encouraged by the other parent; is the transfer of the child for visitation done peacefully; is the parent willing to undergo psychotherapy, marriage counseling, meditation, parent education classes, etc. as it pertains to the child. A new fact that the court may consider in the future is how each parent conducts him/herself during the pandemic crisis. Courts recognize that sometimes people make mistakes and chose a partner who may not be a good fit. These adults are entitled to start a new life. Children of these couples are often stuck in the marital conflict, cannot start over, and may suffer irreparable damage.
MYTH: Women and minorities in the Court System have made huge advances since 2017.
REALITY: The New York State Bar Association commissioned a study in 2017 about women in the courts. They were concerned about under-representation of women lawyers in courtrooms. This concern was despite thirty years of law schools graduating women at about 50% of each class. The Bar Association then recommissioned the study in 2020. What they found is woeful. In the three studied years female lead attorneys in the public sector (like Legal Aid, Public Defender or prosecutor offices) declined to 35.1 % of all lawyers; women attorneys working in private law firms was 38.2 %. This is not overly surprising since we are in the middle of a health crisis. During crises, women and minority society members are badly impacted out of proportion to the number of people in the population. Crises affect them harder. Women attorneys appearing in courts in civil and criminal cases was only 20.7%. The vast number of trial lead counsel are men, and women are most often second counsel, if at all. Upstate courts had more participation by women in court, perhaps because there are fewer total attorneys upstate to go around. The lowest rate of women attorneys is in the Commercial Division of New York County at 18.7% of lawyers. The question has been posed as to why this remains so low. Judge Shira A. Scheindlin, former U.S. district judge and now a mediator and arbitrator, answers that she believes there is still a lack of trust of women lawyers. She suggests that in an important and complex legal problem, businesses and the public feel safer with the middle-aged to elderly white male image, like Perry Mason! She believes that the bar leaders, judiciary and corporate counsel, and especially the public need to come to understand that intelligence and talent are not related to gender. Supreme Court Associate Justice Ruth Bader Ginsburg, who was tied for first place in her Columbia Law School class, could not find a single law firm who would hire her, solely because of her gender. Locally, this happened to one of the best lawyers in recent memory in Oneida and Herkimer Counties, Mary Panarites (sadly now deceased). Many years ago (and with all due respect to the Rev. Al Sharpton at the George Floyd memorial service), Justice Ginsburg said “You need to get your foot off our necks!”
Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.
