An opinion issued by New York's highest court has changed real estate law as it has been understood and applied for hundreds of years. The majority of the Court of Appeals has decided that a landlord can interfere with a tenant's exclusive possession of real property and the tenant is no longer necessarily entitled to a full abatement of rent. In the case of east side exhibition Corp v 210 east 86th street Corp., the court found that the interference was trivial or de minimus and did not warrant the withholding or abatement of rent.
The dispute arose in 2002 when the landlord of tenant's multiplex theater on east 86th St. in Manhattan installed cross-bracing between two steel support columns on each of the tenant’s two floors changing the flow of patrons and slightly reducing a seating area on the second floor. The work was done in anticipation of landlord's plan to add two floors to the building and resulted in a diminution of approximately 12square feet or one tenth of one percent of the leased property.
The real property law which goes back to feudal times originally applied to land, where diminution of tenant's possessory interest generally meant less farm land, but was until this case applied to modern development or improvement of the land.
Prominent real estate lawyer, David Rosenberg argued that his client had suffered "an actual partial eviction" which relived them of the obligation to pay rent. But a mid-level appellate court had already heard the case and said that " current landlord/tenant realities make it particularly untoward tp apply harsh and oppressive strictures derived from feudal law that mirror the policies and concerns of that earlier society."
Before adopting the prior court's reasoning, the high court acknowledged that "the withholding of the entire amount of rent is the proper remedy when there has been a partial eviction by a landlord." Citing long-standing law, the court continued, "If such an eviction, though partial only, is the act of the landlord because the landlord is not allowed to apportion his own wrong." In other words "the tenant has beebread deprived of the enjoyment of the demises premises by the wrongful act of the landlord" and the basis of the agreement to pay rent has collapsed. These principles have been in place even while the tenant remains in possession.
Reverting to an 1865 case decided in the same court, but ignored for the last century and a half, the majority opinion wrote "not every intrusion amounts to an eviction which warrants a full rent abatement ... when there has been no substantial interference with the use of the premises." Judge Ciparick's opinion further cites similar language applied by courts in other states to conclude that "the interference must be more than trivial," and there musts be "some deliberate disturbance of the possession depriving the tenant of the beneficial enjoyment of the demised premises ... to extinguish the rent." Since it was undisputed that the taking was of less than one-tenth of one percent of the space, even though there was some impediment to the flow of foot traffic and the cross-bracing was unattractive, it was "merely a trivial interference," and there was "no measurable effect on the tenant's use."
An unusual dissent followed, in which Judge Read, in a footnote, described her colleagues’' opinion as "schizophrenic." She criticized it for blaming the tenant for not having negotiated a lease which would have given the theater the right to withhold all rent based upon any intrusion, saying, "Why was it not incumbent on the landlord to negotiate" the term. The dissent was committed to following the line of cases which supported the tenant's position and which came long after the Civil War-era case relied upon in the majority opinion, Lounsbery v Snyder. She pointed out that Lounsbery involved a landlord placing firewood on the tenant's rented property. This, Judge Read, wrote was not a permanent taking of land or real estate, unlike the cross-breaching in the theater lobby. Meaning, she concluded, that there was no exclusion or expulsion, trivial or not. "In short," she wrote," a physical expulsion or exclusion is, by definition, non-trivial. Moreover, the intrusion or trespass is permanent, not transitory.
Siding with the theater, and describing the bracings as "an eyesore,” the dissent "would not characterize landlord's unwanted reaming of the lobby as trifling in amount or trivial in effect" and is "considerably different from what tenant bargained for in the lease. Going forward, according to Judge Read, "At least unt [commercial] tenants have the opportunity to negotiate lease terms that account for the change in the laws they have no effective way to combat unauthorized takings by landlords and in leases already entered, there was no way to anticipate this change in the law.
Landlord was represented by David Rosenberg, Tenant by Howard Grun.
The judges concurring with the majority opinion are judges Lippman, Graffeo, Smith, Pigott and Jones.
Emily Jane Goodman is a New York State Supreme Court Justice
In his 2011 State of the City Address Mayor Michael Bloomberg asked Gov. Andrew Cuomo to use an executive order to give control of juvenile offenders from New York City to the city itself. Rather than sending offenders to state-run facilities that are in many cases hundreds of miles away from their homes and are known to be violent and poorly run, the city would place the offenders in facilities close to home.
"The current system is not helping kids, it isn't helping taxpayers and it isn't helping public safety," Bloomberg said at the time. "The bottom line is, I think we all agree we need to stop sending kids miles away from their families and communities. And, instead, authorize the city to fully operate its own juvenile system here in the five boroughs."
But the state budget process had already begun Cuomo had already set his agenda for the year for dealing with the state’s flawed juvenile justice system—by closing some of the most troubled detention centers, trying to improve care in the existing ones and encouraging judges to sentence offenders to alternative treatment programs. Nevertheless at the end of session last year Assemblyman Karim Camara helped the city introduce the Juvenile Justice Realignment Act, that would have accomplished Bloomberg’ goal legislatively.
The bill did not come to a vote but as it turns out this year Cuomo has basically granted Bloomberg’s wish. Instead of using an executive order to hand control of the city’s youthful offenders over to the city Cuomo has made the initiative part of his budget plan as the ”Juvenile Justice Services Close to Home Initiative.” And while the move is not as sure as an executive order—making it part of the Governor’s budget package makes the chance of it becoming law much more likely than if it was a bill being pushed by Camara and the city.
Elizabeth Glazer, Cuomo’s Deputy Secretary for Public Safety, says that the initiative makes sense as part of the Governor’s overall approach to repairing the state’s broken juvenile justice system. She says the state would hand over jurisdiction of juvenile offenders from the city in two phases—offenders who are held in non-secure facilities will be transferred to the city as of this September and offenders in limited secure facilities will be handed over as of April 2013. Kids in secure facilities will remain in state care.
“Before that happens,” explains Glazer, New York City will have to lay out its plan for services that are the least restrictive but meet public safety and are also gender specific and tailored to the LBTQ community. There will public hearings and the city will have to explain how it incorporated the comments or why not.”
The Correctional Association of New York says that it is really the detail of the city’s plan that matters.
“The Governor’s initiative provides a unique opportunity for the creation of a new youth justice system in New York City, one that potentially could bring about better life outcomes for children and strengthen communities,” said Soffiyah Elijah, Executive Director of the CA.
“The CA has, for many years, advocated for keeping children in custody closer to their homes and communities. However, given the many challenges youth justice systems face both in keeping children safe and secure and in meeting the complex treatment and service needs of young people in custody, the details of the city’s plan are paramount,” said Elijah. “We very much look forward to receiving and being able to meaningfully respond to the city’s proposed plan.”
Glazer says it is important to realize that while “stepping back,” the state will, “Maintain crucial strong oversight of the city’s system, conduct on-site inspections and develop performance metrics and analytics,” for the facilities.
Advocates insist that recidivism rates can be reduced if juvenile offenders are kept near home, given support and not treated as career criminals. Kids in state run programs have recidivism rates of 80 to 90 percent while kids treated in alternative programs have only a 20 percent re-offense rate.
Assemblyman Camara has visited a number of treatment facilities and explains that sending a young offender to a secure detention facility in upstate New York can guarantee the child never reforms. “There is a much different culture in alternative programs. Kids that commit non-violent offenses may act tough, they might put on a show but they are not ready to deal with the setting of a secure facility. It crushes their spirit. They don’t get supportive services and the recidivism rate is so high—it is the whole culture and become a part of it.”
Why is the initiative part of the Governor’s budget package? Simply put—because detaining kids costs money--keeping a youthful offender in a secure facility costs around $260,000 a year. Alternative treatment programs cost about $20,000 per child, per year. And the state, to the chagrin of public employee unions, is slowly but surely getting out of the business of juvenile justice. Last year Cuomo closed detention facilities and this year the system is expected to further lose around 300 beds. The reductions are being carried out in a way that will allow for a regional model of care to possibly be implemented across the state.
Overall the state expects to save $9 million dollars by implementing the “Close to Home Initiative” in the 2012-2013 fiscal year and $12 million in FY 2013-2014. Thanks to the reduced number of kids in the system the state will be able to downsize the detention system and expects to save quite a bit on that--$9 million in FY 2012-2013 and $37 million in the following fiscal year.
Perhaps most indicative of the way the Cuomo Administration expects to approach juvenile justice for the entire state is another mandate that is part of the “Close to Home Initiative” that will require all family court judges to have a “predispositional risk assessment” of each juvenile offender before sentencing. The one-page document would be designed to help judges decide how likely someone is to reoffend and exactly what kind of setting would best suit them.
According to Glazer the risk assessment will likely evaluate a child’s criminal offense, school attendance and other factors that play into the risk that they will reoffend.
“There is a complete shift of resources being used more effectively and accurately state wide. Every county will be required to have risk assessment at detention.” Glazer points out that the move will not only save money but hopefully prevent offenders who are generally “good kids” from being sent to secure facilities where they might fall in with a far worse crowd than they know at home—thereby reducing recidivism.
Glazer says that the Office of Child and Family Services is working with the Department of Justice and the department of probation to make sure judges and everyone else in the chain is comfortable with working with these new evaluations.
Camara says he thinks his colleagues in the Assembly are supportive of the “Close to Home Initiative” and he expects that when Senators here more about the plan that they will get on board. He says he has seen firsthand what a difference being near home can make for a child in trouble. “I’ve toured these places and there is a huge difference between the facilities in Brooklyn than the juvenile facility on Rikers Island. There is different atmosphere and kids are closer to their family and have the support staff they need.”
Wanda Chambers came to understand motherhood in an unlikely setting: the solitude of a maximum-security prison.
Chambers, now 41, had struggled with addiction for years; she had tried treatment but couldn't stop using. Her crisis bottomed out in 1998, when child welfare authorities took her infant daughter, Princess, and placed her in the home of a foster parent. Soon afterward, Chambers was incarcerated on a drug conviction.
At Bedford Hills Correctional Facility in Westchester, "I was locked up long enough to really strengthen my mind and change my way of thinking," she recalled. When she got out about three years later, she was determined to prove to the government she deserved to have her daughter back. She went through 18 months of court-supervised drug treatment and parenting skills programs before finally regaining custody.
The experience continues to shape her family. She works as an advocate for parents dealing with child welfare. Meanwhile, Princess' former foster mother remains involved, helping care for the child as a co-parent.
For Chambers, prison and foster care brought regret and revelation. "It was definitely a learning experience," she said. "You lose everything, and you break family ties. And I always wanted to get it right, but I just didn't know how."
In New York City's social service structure, two major institutions wield the power to separate families in the name of safety. With the aim of protecting society as a whole, criminal justice agencies sweep up parents through courts and prisons, while the Administration for Children's Services, charged with safeguarding individual children from harm, routinely removes young people from troubled homes. Though driven by different goals, the two systems interact in many families. Critics warn that both types of intervention may further deepen patterns of emotional and social trauma for children and parents.
There are no comprehensive statistics on families involved with both the child welfare and criminal justice systems in New York City. According to New York State's Department of Correctional Services, the majority of inmates report having at least one child. The Correctional Association, a New York-based advocacy group, estimates that statewide, more than 10,000 children had a mother imprisoned in New York prisons or jails. National data indicate that most mothers in state prisons lived with their children before their current sentence. Of mothers in state prisons with children under 18, about one in ten reported having a child in foster or institutional care; many more had children living with other relatives, though some relatives may also serve as "kinship" foster caregivers.
But national child welfare data reveal more subtle overlaps between the systems. One third of all children reported to local child welfare agencies for being maltreated at home had a primary caregiver who had been arrested at least once. Long-term studies show that families often cycle through social problems that can lead both to losing a child to foster care and to losing a parent to prison: issues such as poverty, substance abuse and mental illness. Demographics underline the connections: people in poor and black communities tend to have heavier involvement with both child-protective services and the criminal justice system.
Reflecting the synergy of environment and family dynamics, most child maltreatment reports are tied not to outright abuse, but "neglect" -- failure to provide sufficient care. A child could become technically neglected if her parent cannot afford adequate food and housing, or is consumed by addiction.
Although a parent's encounter with law enforcement also will not necessarily cause her to lose custody, Children's Services may intervene on an emergency basis if an arrest leaves the child unattended. Reform advocates say these placements can lead to prolonged separation as families wade through the child welfare bureaucracy.
"Over a child's lifetime, mothers and fathers may be arrested multiple times, intermittently use drugs, or have other problems that affect the child's home," said Susan Phillips, a professor of social work at the University of Illinois-Chicago. "People not only progress through the criminal justice system; they loop through it."
The same crises make the home more vulnerable to child welfare intervention. Whether one system is a cause or an effect of the other may be impossible to discern, but both can pull children into a spiral of instability.
Cathy Faust barely had a chance to be a mother before Childen's Services decided she was an unfit parent. A survivor of child abuse, she struggled with depression and drugs throughout her youth, right up to the birth of her daughter Jimeaka in 1990. After charging her with neglect, she recalled, Children's Services pressured her to turn her baby over to the care of her sister-in-law.
Without access to legal help or support services, Faust said, she went along with the plan, but three years later, her sister-in-law moved to adopt Jimeaka and terminate Faust's parental rights.
Though Faust maintained some contact with her daughter over the next few years, losing custody stoked her emotional volatility. "I just felt worthless and hopeless," she said. "It was like I was [the] worst person in the world. So it just made me indulge in drugs more, because I'm feeling less than a woman because I can't even be a mother to my child."
Faust was arrested on drug-related charges in 1998. When she met her daughter again after her release from prison six years later, the legal separation had grown into a permanent distance, and they remain estranged.
Faust, now 47, holds down a job at a social service organization and receives regular therapy. But while her life has become more stable, she said, it is not whole.
"That's my only child," she said. "And it's like, OK, my life is together, but it's not together, because that's a piece that's missing. And so much damage that has been done-not just for me, but for her also, for the family."
Recent reform efforts in both child welfare and criminal justice have emphasized preventing mistreatment or neglect and preserving family bonds. Some alternative sentencing programs can route parents into drug treatment rather than prison. Children's Services has stepped up social support services to help children in distressed homes remain with their parents. But advocates say both systems still fail the city's most vulnerable families.
To regain custody of a child in foster care, a birth parent must demonstrate her willingness and ability to care for the child by meeting an array of legal obligations, such as a mandated "service plan" that could include parenting classes or drug treatment, along with periodic review by family court. But Sarah From, director of public policy with the Women's Prison Association, said complying with this can be nearly impossible for a parent behind bars. "The onus is very much on the woman to manage this process of keeping her family together, while she's under the very hard and stressful situation of incarceration," From said.
Children's Services, which must facilitate visits with birth parents, has helped ease the strain of separation with its Children of Incarcerated Parents Program, which provides foster care children with transportation to correctional facilities across the state. In recent years, some prisons have become more accommodating as well. Parenting centers at Rikers and Bedford Hills, for example, allow family visits in a more open, "child-friendly" setting.
Yet, according to the Correctional Association, problems persist at other facilities, including cumbersome security clearance procedures, a lack of social support services for parent-child interaction, and difficulties coordinating visits with child welfare and corrections personnel.
As an advocate, Chambers said she sees many incarcerated parents set back by unresponsive case managers, who are overworked, out of reach or just insensitive to the challenges of incarceration. "I feel like, when a parent is locked up, out of sight, out of mind," she said.
Unlike a criminal trial, the family court process centers on assessing a child's well-being, rather than judging evidence of alleged criminal activity. The judge and the city tend to take a preventive approach, focused on broad risks to family safety -- from a lack of medical care to domestic violence.
Shortages of money and staff complicate the legal landscape. Despite recent efforts to make the process more efficient, parent advocates say the system still lacks the personnel and funding it needs to conduct adequate investigations or provide competent counsel.
The hurdles facing imprisoned parents grew higher in the late 1990s with the federal Adoption and Safe Families Act. If a child has spent 15 of the previous 22 months in foster care, the law requires that child welfare authorities file for termination of the birth parent's rights. The aim is to set a time period so the child can find "permanency" instead of foster care -- generally, either reunification with the birth parent or adoption by another family.
Though child welfare agencies can make limited exceptions to the timetable based on family circumstances, the law has tightened pressure on parents to defend their custodial rights. Meanwhile, state policies make no specific exemptions for incarcerated parents, whose sentences typically exceed the time line. According to research led by Columbia University law professor Philip Genty, in the years following the act's passage -- 1997 to 2002 -- termination proceedings for incarcerated parents more than doubled.
Criminal justice reform groups have pushed for state legislation to make the foster care timeframe more flexible for incarcerated parents.
The law's aim of promoting stability has backfired, Genty said. "There's no unified, enlightened policy going on," he said. "The correctional system is making its decisions for its own reasons, the foster care system is making its decisions for its own reasons, and nobody's really keeping track of whether that creates inherent tensions."
After returning to their communities, many formerly incarcerated women say prison was the necessary "break" that compelled them to change their lives. But to activists, that attests not so much to the positive aspects of incarceration as to a lack of alternatives. Reform advocates argue that neither locking up parents nor removing children from their homes can substitute for community-based programs that intervene to keep families intact before a crisis hits.
"It's not that the transforming factor or moment had to be prison, per se," said Tanya Krupat, a program director at the Osborne Association, a criminal justice-focused service and advocacy organization. "But it was that prison may have been the first time that a woman felt safe, let's say, because she was in a domestic violence relationship, or it's the first time someone could actually detox and think clearly. Then that's a failure of us not having adequate or accessible drug treatment, domestic violence services and other programs."
After Natalie Credell was arrested in 2005 with her boyfriend on drug-related charges, she was placed on bail and ordered into a residential rehabilitation program, designed to house her and her infant son, Nasir, while she got treatment. But Credell, 31, found the program stressful and stifling. After clashing with the counselors, she dropped out and relapsed. She ended up doing 15 months in a federal prison in Virginia, and Administration for Children's Services placed Nasir in the care of Natalie's father.
Like Chambers, Credell hit a wall in prison. "It just dawned on me that I'm a mom now," she said. "This is not where I want to be. This is not the type of mother that I want to be to my son."
Following her release, Credell found her way to Hour Children, a Queens-based organization for women transitioning from prison that offers job training, childcare, and supportive housing. She regained custody of Nasir in March 2007, and the two now live together at Hour Children while she studies to become a drug-treatment counselor.
Credell traces her crisis farther back than her arrest or even her addiction. She first encountered Children's' Services as a child, she recalled, when her mother's drug use prompted a child welfare investigation. She eventually went to live with her grandmother. But her mother's turbulence had started her on a chaotic trajectory.
"The streets taught her," she said, "and this is what she passed on to me."
Now on the outside, Credell hopes to pass something better onto her son. "A mother is a child's world," she said. "So in order to make things happen for him, I have to make things happen for me."
Michelle Chen is a freelance writer and a native New Yorker. This article is part of a series that will explore the connections between the criminal justice and child welfare systems in New York City. The project is supported by a fellowship from the Center on Media, Crime and Justice at John Jay College of Criminal Justice.