Do I Have a Right to a Jury?

What is the single most important thing you can do to help your housing court case? It is to file a jury demand and pay the jury fee to the court clerk on the very first day you show up in the courthouse.

Article I of the New York State Constitution gives you the right to a jury of six persons in most civil trials. RPAPL § 745 gives you the same right in any housing court case. Most tenants prefer to present their cases to juries. One judge can make a mistake, but it is unlikely that six people are going to make the same mistake at once.

Most tenants, however, have unknowingly signed away this right. Look on your first lease; there is probably a clause that waives the jury trial. In some circumstances, this waiver will be disregarded, and the courts have allowed the tenant to go to a jury anyway.

Most subletters (in Manhattan, at least) still have the right to a jury, because they never signed the lease containing the jury waiver. Other court decisions have held that occupants claiming succession rights are not bound by the jury waiver clause.

In Harlington Realty v. Eager, NYLJ, December 13, 1991, p. 21, col.2 (1991), a panel of judges of the Appellate Term, First Department (Manhattan) unanimously held that a co-tenant who failed to sign a residential renewal lease is not bound by a valid jury waiver in the original lease.

In Halbor Realty Co. v. Torrecilla, NYLJ, March 26, 1992, p. 25, col. 2, the same (Manhattan) court held that a lease containing a jury waiver was inapplicable to a tenant who succeeded to a rent-controlled tenancy.

Manhattan Housing Court Judge Doris Ling-Cohan denied a motion to strike jury demand of an occupant claiming succession rights to a rent-stabilized apartment. "It is well settled," wrote Judge Ling-Cohan "that a jury waiver clause is not enforceable against non-signatories to a lease." ACP 301 East 69th Street Associates, L.P. v. Blake, NYLJ, October 29, 1997, p. 30, col. 1 (Civ. Ct. N.Y. County).

A lot of landlord's attorneys ignore tenants' jury demands, because they doubt that the tenants have paid their jury fees, or they mistakenly believe that the jury waiver in a lease is "self-executing." These attorneys are often unpleasantly surprised to discover on the day of trial that they are going, not to the courtroom, but to the jury selection room.