May 17, 2011


Judge rules on city response to rental suit

Only 2 of nine defenses will be allowed in amended answer to landlord lawsuit

Staff Reporter

The city’s attempt to file a revised answer to the lawsuit brought by a group of landlords over the rental permit program was partially granted Monday.
State Supreme Court Justice Phillip Rumsey denied five of the nine proposed affirmative defenses, which provide additional facts in an attempt to have the case dismissed.
But he allowed the correction of 15 missing or inconsistent answers and a verification page signed by the mayor.
Corporation Counsel Patrick Perfetti said although he was not granted all of the changes he requested, he was pleased the city was allowed to make most of the changes, including to the answer.
“It is much more significant that the answer be properly formed,” he said.
The answer responds to the landlords’ claims, which state the searches allowed under the rental permit program infringe on their Fourth Amendment rights against unreasonable searches.
The city Housing Committee last week recommended the wording for the law be revised to allow those who register for the program the same rights for searches as someone who does not.
The program’s aim was to identify where such properties are located and to control the number of renters residing in them. It would help enforce the “three-unrelated” law, which makes it illegal for four or more unrelated people to live in a single dwelling, unless they are living as a functional equivalent of a family.
Three of the affirmative defenses, which were based on the city alleging the lawsuit was based on financial loss, were denied and called “wholly devoid of merit” by Rumsey.
Money damages were only brought up in support of a temporary restraining order, Rumsey said, which was granted last July. The restraining order was officially replaced with a preliminary injunction last week, when the landlords furnished a $10,000 bond.
Another denied defense, claiming the landlords began the lawsuit before the program had taken effect, was also called “meritless” by Rumsey, since there was a letter to one of the landlords threatening financial penalties for not registering by July 30, 2010, and offered a discounted registration fee for applications before May 31.
The lawsuit was filed July 23, 2010.
The final denied defense refuted the landlord’s claim the law was “impermissibly vague,” since it used plain language. Perfetti cited Rumsey’s preliminary decision in February in which he said the terms “family” and “related” would have their ordinary meanings.
Rumsey said the inclusion of the defense showed a “striking disregard” for the court’s warning that the preliminary decision was not the final determination.
Two of the defenses claiming any law or ordinance passed is presumed to be constitutional were not properly brought forward as an affirmative defense, Rumsey said.
Gerry Ruggiero, one of the landlords in the lawsuit, called the decision “a clear victory for the landlords.” He said the affirmative defenses were designed to throw curveballs at the landlords, and failed.
“It’s nonsense and the judge agreed with us,” Ruggiero said.
The city will have until May 31 to file the two remaining affirmative defenses.
The first states the landlords did not exhaust all administrative remedies available to them before filing the lawsuit.
Rumsey said it was unlikely that would be an issue in the lawsuit.
The other stated three of the plaintiffs, Paradigm Properties, Lexi Properties and Dukelow Family Trust, did not have proper authorization to be a part of the lawsuit. Rumsey said even if the three were dismissed, there would still be nine plaintiffs in the case.


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