It Was 20 Years Ago Today: Reflections on 20 Years as a Tenant Attorney
There are good landlords and bad tenants. But there's a big difference. When a landlord loses, he or she or they (or in most cases large impersonal entities) may lose money. When a tenant loses, he or she or they loses a home.
August 10, 2022 at 09:45 AM
8 minute read
Twenty plus years ago I joined Himmelstein McConnell Gribben & Joseph LLP as an associate attorney. I had never practiced law. For six years, from 1985-1986 and 1996-2000, I'd been an aide to Upper West Side Assemblymember Edward Sullivan. In between, I went to law school and worked for a City Councilmember in Los Angeles.
Since housing was the biggest issue facing constituents in our district and Sullivan was a liberal and uniquely activist legislator, as part of my job I accompanied scores of tenants to housing court, assisting them in representing themselves, and preventing numerous evictions. While I never appeared in court as an attorney, I knew the law, I knew the judges, and most importantly, I knew the housing court clerks. First word of advice to anyone who wants to be a litigator: Make friends with the court clerks.
Ready to move from tenant advocate to tenant attorney, I took the New York bar, was admitted and, with the help of a good word from Kenny Schaeffer, my mentor at Sullivan's office, I was hired by Himmelstein McConnell. We all knew that the real reason I was hired was that Sam Himmelstein needed a lead singer for his rock n' roll cover band, The Love Handles.
I was fortunate to fall in with an extraordinary group of people. We were a tenant-side only landlord-tenant firm in the roughest, toughest real estate market in the country, if not the world. We all believed in what we were doing. We ate lunch together every day, all of us. At lunch we talked about our cases and about baseball and music and politics and we laughed, a lot.
As a new associate, I worked long, long hours, drafting letters and answers and motions, dealing with (sometimes) difficult clients. One of my first big cases involved poring over 10 years of rent records for a dozen tenants to determine what was owed by whom after extended rent overcharge litigation. The case had been handled at different times by every attorney in the firm. Opposing counsel, the landlord and I ended up at a table in the judge's chambers for hours sorting it out. At one point the landlord yelled at me that I was a communist and my clients were entitled to nothing. I asked his attorney to please restrain his client. No luck. Welcome to New York housing court. In the end we settled all of the remaining claims. I sang The International. (The landlord was later on the losing end of many overcharge cases that became reported decisions.)
Life went on over the next 21 years. We lost a cherished associate, Janet Kalson, to cancer. Children were born, children were married. Parents died. We went through three Presidents, 9/11, two wars and COVID. In 2007, I made partner. We had a big party with music by The Love Handles. One of the gang I started with, Kevin McConnell, retired and another, Liz Donoghue, went on to be a housing court judge.
My first trial involved a gay man, Stanley, whose life partner, Kurt, had died 13 years before, after they'd lived together for many years in a rent stabilized apartment. At the time Kurt died there was not only no marriage equality, the law had only just recognized succession for unmarried couples. Stanley and Kurt were "in the closet" and Stanley was afraid to come forward after Kurt's death. So Stanley, advised by an attorney at a legal clinic and with the knowledge of the property manager, signed Kurt's name on leases for 13 years. Then the truth came out and he was faced with eviction and he came to me. An unusually courageous housing court judge, Timmie Elsner (since retired) ruled in Stanley's favor. I won my first trial! A victory for justice and equal rights!
The Appellate Term reversed. The property manager was sued by his employer under the doctrine of "unfaithful servant." Stanley lost his home of over 20 years. Hard lessons. What a courageous judge gives the appellate court takes away.
Over the course of the next two decades I tried many more cases. I won all but one.
There was an "owner's use" case where, when I showed the landlord a document that he had signed which contradicted prior testimony, his attorney jumped up and objected asking "what is the relevance of the question?" I replied "to impeach the witness!" Yes, most of time being an attorney is not like it is on TV, but sometimes it is. There was the landlord who thought that recovering the tenant's allegedly unused storage room by using a crow bar to open the door and removing all of the tenant's belongings was not only a good idea but that the act should be filmed. I brought an illegal eviction case. I offered the video at trial, no objection. I won the trial and my client got her storage room back.
There was the elderly low-income co-op resident who sought succession after her mother died. The Board had it in for her, for all kinds of personal reasons that often seem to beset co-ops. Her relevant documents were far from perfect. But the Board president's personal animus came through strongly on the witness stand, while my client's basic decency was apparent. Won the trial and the appeal.
Then there was the trial I lost. The issue was whether two buildings should be considered one single "horizontal multiple dwelling" which would make my clients' apartment rent-stabilized. The facts may not have been clear cut, although I thought I had enough on my side to win. The "equities" were overwhelming in my view. My clients were in their 80s and had lived there for decades. My 17-year-old daughter attended the "closing argument", which was unusually long. She was sure I had won. I was confident as well. I lost. I was crushed. My very capable adversary had dug up a photo in the city archives that may have sunk my case. Second word of advice to aspiring litigators: Never be overconfident, always litigate like you could lose, because you could.
The highlight of my career so far was a case that went to the Court of Appeals. It was another succession case, this time involving a Mitchell-Lama (tax subsidized housing). My client had lived in the apartment his entire life and sought to take it over from his mother. His succession application was denied because he was not listed on an "income affidavit" which was a requirement of succession. There was not one reported decision in my favor and many against me. I told my client it was almost definitely a loser but he wanted to press on and we did. DHCR sent an attorney from the Attorney General's office for oral argument on the Article 78 (first level of appeal). She brought three interns to watch me get crushed. Judge ruled for my client. We went on to win at the Appellate Division. At the Court of Appeals the justices ripped into me. Tore me apart. Afterwards I was sure we lost. My daughter, who had watched online, called me and said "you won." This time she was right. We won, on a 4-3 vote. The decision has been helpful to many tenants seeking succession. I'd made law.
So what have I learned? Be courteous to court clerks. Never, ever, ever be overconfident and assume you will win. Always be prepared for the worst. Look for that perfect balance between passion and detachment. Prepare prepare prepare. See every case from the perspective of your adversary. Don't overpromise to your client while at the same time make sure your client always knows you will do your very best. Do your very best. Tell your client's story. Communicate, with clients and with adversaries. Avoid unnecessary bluster. Take a deep breath, step back, take care of yourself. Play in a rock n' roll cover band.
There are three different kinds of attorneys. There are those for whom it is just a job. There are those who believe deeply in the law itself, but for whom the particular client is unimportant. And there are those for whom it is part of the overall fight for social justice. There is room for all types. I'm glad to have a job where I feel that I am part of the overall fight for social justice and glad to have smart, driven and committed colleagues who feel the same.
There are good landlords and bad tenants. But there's a big difference. When a landlord loses, he or she or they (or in most cases large impersonal entities) may lose money. When a tenant loses, he or she or they loses a home.
Ready for the next 21 years.
David Hershey-Webb is a partner at Himmelstein McConnell Gribben & Joseph LLP and has represented tenants as a community advocate for a New York State Assemblymember and tenant attorney for over 25 years.
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