Part One of Two
On Tues. the 1st I went to Judge Milin's courtroom to see if she had signed my application for an Order to Show Cause ("OSC") where I asked her 1) to set aside the stips of July 8 and November 18, 1998; 2) to grant me leave to amend my answer on the grounds of evidence discovered on and after Nov. 20, 1998 which gave me the basis for an affirmative defense and a counterclaim and 3) to grant me an extension of time to draft my proposed counterclaim.
I had filed the application for an OSC with a pre-printed affidavit where one is asked to check little boxes in front of the answers that apply, but I also had written an eight-page affidavit and filed it with the other two papers. In the pre- printed affidavit I referred twice to my own affidavit by saying "see attached affidavit" for more details.
The judge had signed my application for the OSC, which I now had to serve by mail on my landlord's attorneys, but when the clerk picked it up I saw right away that my eight-page affidavit was not attached. I informed the clerk of this and asked him where it was. Judge Milin gave me a blank look. The clerk looked at me with innocent blue eyes and told me that it was probably in the file. From his tone, it was business as usual, nothing to worry about.
So I went to the post office on Canal Street and took the line. Five minutes into the line I left it because I knew that without my affidavit the landlord's attorneys could deny with good reason that they had been properly served. I hesitated. Should I go back to the courthouse and raise a ruckus to get my affidavit? Closing time was near and the walk between the post office and the courthouse was a good twenty minutes if one walked fast. I felt miserable not knowing what to do, having left the line but hesitating to go back to the courthouse. These things happened only to me. There was no precedent to follow.
I returned to the line at the same spot I had been without anybody protesting, mailed the papers and got a certificate of mailing. I returned to the courthouse to file an affidavit of service with my certificate of mailing attached. I told the clerk that an affidavit was missing from the papers I was supposed to serve. Without my intending to be argumentative, the clerk became upset and we started speaking tensely to each other. I told him that the judge's clerk had acted as if there was nothing unusual about my affidavit missing from the papers to be served. He told me that I had to serve all the papes, which I knew, and he suggested that I ask the judge's clerk again for the missing affidavit. But I didn't want to talk to him again.
I returned home depressed and disgruntled. I had written the first page of my affidavit with only one carbon copy, but start- ing with page two I made two carbon copies to have one for my file. So I re-typed page one from memory and made photocopies of the ugly second carbon copy.
On Wed. the 2nd I returned to court with it and ex- plained to the court attorney that I could be unfairly prejudiced due to the absence of my affidavit from the papers. Judge Milin gave me a blank look. The attorney asked me if the affidavit was attached yesterday when I picked up the OSC and I said that it was not. She said that since I was not at fault I could serve it today "nunc pro tunc" and the judge would probably not object.
Since Steiner, one of my landlord's attorneys was in the hallway, I asked for permission to hand him my affidavit to effectuate service. I was allowed to do so. I went out and called Steiner and told him what happened. He did not object to the service and I wrote the caption of the case on top of the first page and asked him to sign for it. He signed on the back of my copy of the pre-printed affidavit but wrote "Dec. 3rd". You really could not relax your vigilance. I made him correct the date.
On Fri. the 11thI called the SRO (Single Room Occupan- cy) Law Project and asked the secretary, er, administrative assistant, if it was ok for me to come over to do some legal research next Monday and Tuesday. She said no problem and agreed on 9:30AM.
On Sat. the 12th I called my mother collect from the street. The weather was cold and grey. It was my last chance and also hers to avoid an escalation of the guerrilla to a new height of nastiness. When the operator told her who was calling (of course it could only be me, all the others have money) and asked her if she accepted the charge she said no and hung up. "That was my mother," I told the operator. She asked me if I wanted her to try again and I said ok. This time my mother accepted the call. I told her that it was my absolutely last chance to pay my back rent, that the next hearing was next Wednesday and that if I couldn't prove that I had the money to pay, my landlord was going to get a warrant of eviction against me.
She replied that she didn't owe me any money, therefore if I got evicted I should get in touch with the French consulate to get myself rapatriated to France. I asked if she realized that if I got evicted I would lose all my possessions because I didn't have any money to put them in storage. She said that I got myself into this mess and it was up to me to get out of it. I couldn't believe, even after all she had done to me that she, my own mother, was abandoning me to this horrible fate one step away from the gutter in December. She wanted the French Consulate to send me back to her!
Whatever she suggested, whatever the means she advised, whatever the words she used, it always boiled down to coming back to France. And now she wasn't even offering to send me a plane ticket, she wanted the consulate to foot the bill because she did not owe me any money althought at last count in my estimation she owed me about $600,000 plus interests since 1990, plus four years of rent on my share of an apartment building.
I didn't know how else to ask her so all I said was "Please, mother, send me money, please" and she answered with accusations. When I told her how much money I thought she owed me she hung up.
Meanwhile I was busy doing legal research at home. I had found what I wanted and all I needed were case citations to flesh out my argument, hence my call to the Law Project. I went there on Mon. the 14that 9:30am, just in time for the breakfast ceremony. The secretary asked me how long I thought it would take me. I said that with legal research, you never know. I picked up the volume I needed (McKinney's Consolidated Laws of New York, Book 7b) from the shelf above the secretary's desk and installed myself with paper and pen on the seat in the waiting area.
I heard one of the paralegals fuss ad nauseam about what was wrong with the hot beverage the sec had brought him. Thank God I'm not a secretary any more, I thought. I knew him from two or three years ago when the building owner was Bonarti. I had always liked his appearance, with very short blond hair and tasteful and understated clothes, and nice shoes, but now his fussiness made me realize that he was a homosexual. Why does a man have to be a homosexual to wear nice shoes and clothes? I wondered. Normal women are really out of luck. The typical white American heterosexual male is too often a repulsive slob with stinky sneakers.
While I was copying down citations a man entered. He was poorly dressed with an old, dirty looking parka and carried an orthopedic cane that had an arm-brace and clicked annoyingly every time the tip hit the floor, though the man didn't seem to really need a cane. The sec sent him to the paralegal. I tried to concentrate on my work but couldn't help hearing the paralegal tell the man: "I cannot advise you because I'm not a lawyer. You should speak to one of our lawyers. Come next Thursday at 5PM for the intake."
The man said that this case did not concern him directly, the court papers were addressed to a friend of his, and could he appear for his friend? Upon which the paralegal repeated verbatim what he had already said. The man asked another question and the paralegal said the same thing a third time. It sounded so monoto- nous and rehearsed, it had to be a little event staged just for me, sending the message that I should ask for legal advice at the Law Project. A tenant-informer at the building had already strongly encouraged me to do so with a tempting promise: "They can get money for you, even if you're due an inheritance, they can obtain a loan for you with your inheritance as collateral." And what did you say the price is, for the Brooklyn Bridge?
So I kept scribbling, blackening paper, never looking up, not showing any sign that I heard what the paralegal said. I put the book back and took another one, wrote down citations again, put the book back while the sec was away from her desk and after an hour I was all done. "I'm all done," I said as I left. "Thank you very, very much." I thought that if they really want to help tenants, they shouldn't have any objections to letting them do legal research at their office.
I returned home and went out again to buy groceries. When I passed the last room before the door that opens into the lobby, I noticed that the door to the room was open and the room was in a state of disarray. When I returned, the transexual who lives in that room called me: "Excuse me..." I ignored him and kept walking to my room. "Excuse me!" he said again with a tinge of impatience. He had followed me around the corner of the hallway. I was about to open my door. "Yes?" I said. "I've been robbed. Someone came into my room and robbed me. I wanted to let you know. Be careful! Be very careful!" "I'm sorry to hear this," I said and entered my room.
Once inside the words echoed in my head: "Be careful! Be very careful!" I thought that lightning didn't strike twice at the same spot. If I was robbed at home, it wouldn't occur to me to warn my neighbors that they were in danger. I smelled a rat and went to his room to ask him to elaborate. He opened and let me in.
"Did it happen while you were out?" I asked.
" Yes" he said. "I was out at night and that's when it hap- pened."
"Did you give your key to anybody?"
"No, they came in through the window."
I walked to the left window but he told me that "they" had come in through the right window, by standing on the ramp of the back stairs that are just below his window. I walked to the right window and saw that the telephone connection box had its cover missing and some wires were sticking out. There was a folding grill on the window.
"They pried the frame of the grill from the wall to come in. Mitch (the building manager) has been here and fixed it."
Yet there was not a speck of plaster anywhere around and the dust was pristine on the glass, the window frame and the window sill.
"What was stolen?"
"My TV set and my stereo and my phone. I just bought a new phone. I was talking with my mother when you came in."
He showed me an immaculate white phone set and a TV table with CD's strewn about.
"Did you make a report to the police?"
"No. I don't want the police to know."
It all loked very fishy to me. The only sign of violence was the cover missing from the phone connection box, but why would robbers tear it off? If they wanted to steal the phone set all they had to do was unplug the jack. And there was absolutely no sign that anybody had come in through the window.
"I'm really sorry that this happened to you." I said and left.
"Be very careful!" he said.
This "Be very careful" business sounded like a veiled threat to me and I didn't like it. The next day I wanted to put my mind at rest about this matter. I went to the back stairs. The ramp under the man's window was slanting and it would not have been a convenient foot rest to climb to the window. I looked at the window sill and at the window. Everything was covered with a uniform layer of black grime. Nobody had entered that window.
I was angry and went to the manager's office. "What is this fake robbery about?" I asked. "There has been no robbery! Why is this guy saying that he was robbed and telling me to be careful? Does it mean that I shouldn't go to court tomor- row? Is that what it means? Are you trying to intimidate me?"
"What are you talking about?" Mitch asked. "I don't know what you're talking about. This guy, I just had an argument with him."
"Oh! Another of your fake arguments! You're not fooling me with your fake arguments!" I said and left the office.
I had noticed for quite some time that when Mitch wanted me to believe that somebody was not his friend or associate, he argued with that person in front of me, trading insults and put-downs.
At the Dec. 16 hearing, I found one of my landlord's lawyers at the end of the check-in line in the courtroom, waiting his turn to announce himself to the clerk. I saluted him by saying "Hi, I'm Picart". "I know who you are" he answered in a ominous tone. I asked him if he had our call number: at the start of every court session the clerk asks the litigants to get their call number from the list posted outside the number and to give him this number before saying anything else. The lawyer didn't have our call number so we left the line and went to the board to get it. The lawyer, an effeminate man in his late thirties walked hurriedly back to the line to be ahead of me. He was the one I had refused to sign a stipulation with at the Dec. 8 hearing. When it was his turn at the clerk's desk he gave the call number and announced himself as counsel for Petitioner, my landlord, and instead of letting me announce myself he said to the clerk "She's here."
I wanted to remind the lawyer that at the hearing of Nov. 18 Steiner, another lawyer of his firm, the left-handed one with the illegible handwriting, had written at Paragraph 3 of the stip that "Petitioner will not oppose an Order to Show Cause for GOOD CAUSE shown", so instead of arguing my application for an O.S.C. before the judge, which was the reason we were here, he could just stipulate now that I amend my answer to the landlord's non- payment petition. I had even brought a blank stip with me which I had found in the hallway at a previous court date. But the lawyer turned around to keep his back to me. Obviously he avoided me and when I told him from behind that I wanted to talk to him he said "Lady, you're nuts and P.S.A. are on their way to help you. The judge called them. I don't want to talk to you." "Are you a mental health expert?" I asked.
I wondered what "P.S.A." stood for but the lawyer had moved away as if he was afraid of me. Were they men in white who would take me away from the courtroom in a straitjacket? I told the court attorney that my landlord's lawyer said that I was nuts and asked her what P.S.A. stood for. She said that it stood for Protective Services for Adults. I asked her how come I hadn't been notified that anybody wanted to put me under the care of that agency. She said that the judge would explain it to me when my case was called.
I waited in the courtroom. The landlord's lawyer stayed outside and four or five times he opened the door and yelled "PSA!" I felt an incipient terror and fought the urge to bold every time I heard the dreaded initials, but I thought that it was probably what he wanted me to do, so he could get a default judgment against me and obtain a warrant of eviction.
So I relaxed, took deep breaths and reflected that, appearanc- es to the contrary, this was not Soviet Russia where people who know too much are put in the loony bin, but Democratic America where Due Process of Law and Freedom of Speech are so higly valued that the Constitution was specially amended to include them among the rights of "any person" within the jurisdiction of the United States.
I made sure that I didn't act funny and sat straight on the bench with my trenchcoat on my lap and my arms loosely resting on top. Maybe the woman sitting to my right, who told me that the judge was a very nice and softspoken lady, was a spy who would testify that she saw me do this or that, which proved to a degree of absolute certainty that I was not "compos mentis".
I wore a black-and-white tweed jacket with a black velvet collar, black pants, conservative tasselled mocassins, so I wore the proper attire. I looked and listened while other cases were being heard. The lawyers sounded unconvincing. One of them made arm gestures and even these gestures loked insincere. No money could buy the advocate I needed. I certainly didn't want any of the mouthpieces I saw. This convinced me that I was not only the only possible advocate for my side, but also the best possible one because I needed my case to be advocated with the passion and outrage generated by all the suffering I had gone through these past ten years, and no matter how much I paid a lawyer, he would never feel as strongly as I did about it. Which is okay because I'm broke. And last, but most important of all, NOBODY COULD BUY ME OFF to act against my own interests.
This case had first been assigned to Judge Marian Doherty but for some unexplained reason Judge Maria Milin had been in charge of it since the Nov. 18 hearing. When my case was called the judge, a very petite woman in her late thirties or early forties, asked me to state my name for the (taped) record . I said slowly and distinctly "Brigitte Picart, Respondent, Pro-Se." Siting to my left at counsel table was a black man with a big file and an appointment book. He stated that he was Roger Knight, Housing Court Liaison of the PSA of the City of New York. The landlord's lawyer announced his firm's name "Rappaport, Hertz, Cherson and Rosenthal for Petitioner".
I asked the judge, motioning to the PSA man "What is this?" showing surprise and indignation. I said that I hadn't been notified of any motion to appoint PSA to me. The judge smiled indulgently and said in a soft voice that on her own motion she had decided that I needed PSA and that she would explain it to me later. I had always thought that notification was one of the tenets of due process. I asked what were the criteria that made a person eligible for PSA. She asnwered that it was when adults were unable to prosecute or defend a lawsuit to which they were parties. I smiled contemptuously. Because in my affidavit I had stated that my mother had tried to have me killed and that my landlord was helping her to cover up the affair, by violating my privacy and keeping me under virtual house arrest, the judge had concluded that I had to be a nut case!
I knew I had made a few mistakes in my affidavit (in support of my application for an OSC): I had said "cross-claim" instead of "counterclaim"; I had said "overturn" instead of "set aside"; I had used the doctrine of "equitable estoppel" to claim that if my landlord prevented me from working he shouldn't at the same time ask me to pay rent. In itself it was not a mistake, it was just a novel way of invoking the doctrine. Usually it is used to defeat the expiration of the statute of limitation. But lacking expertise is one thing, being a nut case quite another. Maybe the judge equalled one with the other.
She said that she was going to order the appointment of a "guardian ad litem" to act on my behalf in this litigation. I knew that if a lawyer was appointed to me against my will, he would only pretend to help me, like all the lawyers I have dealt with until now. In fact he would collude with my opponents to perpetuate the cover-up at my expense. That was a smart move, saying that I'm nuts and force a lawyer on me.
She asked me when I had moved to my present address. "In August 89" I said. "And was 1994 the last time that you worked?" "That's correct, your Honor." I answered. "Yes, that's what I thought, you really need a guardian ad litem." she said decisive- ly, as if my answer to these two questions had sealed my fate.
I knew that guardians ad litem were for people who were in psychiatric hospitals or otherwise unable to act responsibly and she put me in the same basket with them! I felt utterly betrayed and looked at her in disbelief. She went on saying that I would get a mental evaluation by PSA and maybe they wouldn't find me eligible but personally she was convinced that I was in dire need of PSA. I felt like saying "I's not PSA that I need. What I need is TLC!" I turned to the PSA man on my left and asked him more about it. He said that they could help me, appoint a lawyer, get money to pay my back rent and that PSA was not just for the mentally ill bu also for people who had physical disabilities or were too old. I said that I had a slight disability because of a leg injury. The judge interrupted me as if she was afraid that I go into details, and asked me to state my case but before I could start the landlord's lawyer said hurriedly:
"This has lasted long enough, your Honor! This petition was commenced last June and we haven't seen a red cent of this lady's money although she has signed two stipulations where she commit- ted herself to pay the back rent and the deadlines are long past. Maybe we can obtain a judgment against her today so that hopeful- ly we can get her to vacate her apartment by the end of Decem- ber."
He was lying about not seeing a red cent because I had com- plied with part of a stipulation and paid $927 on July 24th and I told him so. As to getting me to vacate the premises by the end of December, I knew that he was bluffing because on Dec. 11 I read in the Post that a three-judge panel of the Second Circuit Court of Appeals had overturned the long-standing 72-hours notice to vacate as unconstitutional. The judges ruled that tenants are consumers of rented space and should have the same protection given consumers in commercial transactions, i.e. a thirty-day period.
Before coming to court I knew I had to expect some attack from left field because that's what happened every time I dealt with the justice system. So I had braced myself and instead of being flustered and losing my train of thought I ignored everything that I had just happened as so much bull without even knowing that this PSA business was a totally unlawful attack, and I plunged ahead to argue my case.
I had done my homework, knew what sections of the law to rely on and was absolutely confident. When I spoke of my landlord as "Petitioner" the judge gave a start. Since "Petitioner" was a corporation, I avoided saying "he" and when I spoke of the owner I referred to him as "Petitioner's agent". I explained that I was entitled to have the stip of Nov. 18 set aside, based on evidence that surfaced two days later, whereby Petitioner's agent, the building owner, had made a statement which amounted to an admis- sion that he knew my mother when he said to me with dead certain- ty that she was not going to send me money. "How does he know?" I asked rhetorically.
"Besides, another agent of Petitioner, the building manager who works full time at the building, had gone behind my back to turn my boyfriend against me and caused us to break up, and he has stolen some of my business mail."
"In short," I said, "Petitioner, through its agents Mr. Oved, who I believe is the owner of the building, and the building manager, has been abusing its power by interfering with my private life, my work and my social life. Therefore Petitioner is directly responsible for my inability to pay my rent."
"Since the evidence that Mr. Oved has been in contact with my mother emerged two days after I signed the stip of Nov. 18, I couldn't have used this evidence in my answer to the petition, which is dated June 19, 1998."
"Because this new evidence gives me the grounds for an affir- mative defense and a counterclaim, I am entitled to amend my answer accordingly, pursuant to CPLR 3025 b). Besides," I added, "in Paragraph 3 of the stipulation of Nov. 18, Petitioner agreed not to oppose an Order to Show Cause for good cause shown."
This was a deadly blow, certainly unexpected by the lawyer. As I said before, Steiner's handwriting is illegible but I remem- bered him reading the stip to me on Nov. 18 before I signed it. "Petitioner will not oppose an Order to Show Cause for good cause shown." This looked like a nice throwaway gesture on his part, as I hadn't asked for it. Steiner himself was almost likable: a short, balding, softspoken man, he appeared tractable, not such a bad person to stipulate with. When I asked him to stipulate to make the repairs to the water-damaged ceiling, which still wasn't done although it had been stipulated previously, he was sur- prised, he didn't know, and he wrote it in without making a fuss. He was showing such good will that you felt like saying "OK, just because you're nice, I'll stipulate that I'll pay $3,460 by the end of the month." Which, in fact, I did. Not pay, but stipulate.
But later on I had reflected that it was certainly not by chance that when all a tenant's delaying tactics were exhausted, in came Steiner with his soft voice and his hieroglyphics. If he said that he would not object to an OSC when a tenant had already asked for repairs and inspection, there was no good cause left. And in the unlikely event that there still was a good cause, the tenant was likely to have forgotten the third clause, and in case he read the stip again he couldn't decipher the handwriting. Therefore the third clause was just a bait to incite the tenant to commit him or herself to pay a big sum of money on short deadline, a concession devoid of substance. Unless you remembered it and your landlord conspired with your mother to cover up her failed attempt to have you killed.
Finally I reminded the Court that according to Art. 6, Section 19 h) of the Constitution of New York State, the Civil Court -of which Housing Court is part- was mandated to transfer to the Supreme Court a case over which it didn't have jurisdiction. But, in order to spare her feelings, I told the judge that she had "the power", not "the obligation" to transfer the case. "But I do have jurisdiction" she countered patiently. I replied that she did not have jurisdiction over my affirmative defense and my counterclaims.