Melissa Bailey Photo
Plaintiff Danielle DiGirolamo.
A Superior Court judge rejected an 11th-hour complaint from Occupy New Haven Attorney Irv Pinsky at the close of business Tuesday, leaving no immediate legal recourse to prevent an expected Wednesday morning eviction.
On behalf of two members of Occupy New Haven, Pinsky filed a complaint Tuesday morning in state housing court at 121 Elm St. The complaint charges that the city broke Connecticut’s anti-lockout law when it began to evict the Occupy encampment from the Green last week; it asked for an 11th-hour injunction preventing the city from booting the “tenants.”
Pinsky’s state court filing came as the movement — which has had tents up on the Upper Green since mid-October as part of a nationwide anti-corporate “Occupy Wall Street” movement — exhausted its final recourse in federal court when an appeals court in New York rejected a motion for an eviction stay. (Click here to read about that.)
Judge Terence Zemetis reviewed Pinsky’s request and rejected it Tuesday afternoon, according to Chief Housing Clerk Suzanne Colasanto.
“The paperwork was returned because it wasn’t in order,” Colasanto said at 4:40 p.m.
Colasanto invited Pinsky to re-file the paperwork, but court doesn’t open until 9 a.m., an hour after the planned eviction.
Pinsky said the paperwork was fine — the problem was that it was missing a payment. He blamed the clerk’s office for the snafu.
“They’re supposed to take a check,” Pinsky said, “but they didn’t take the money.”
Pinsky’s request was called a “verified lockout complaint and application for temporary injunction.”
His request was based on the state anti-lockout law, which forbids eviction without court action and adequate notice to the tenant. His case hinged on whether the Occupiers, who never had a permit to camp on the Green, count as “tenants” of the Green.
Reached Tuesday afternoon, Pinsky said he planned to meet with his two clients, Erin Mitchell and Danielle DiGirolamo, later Tuesday to talk about how to proceed. Options include pursuing an illegal eviction case, whereby the campers could seek damages for getting booted from the Green.
He said he expects them to agree to move on with their lives and give up their residence on the Green.
“After 6 months there, I wouldn’t mind if they found a safer, better place to live,” he said.
Any further legal options would have to wait until court opens at 9 a.m. Wednesday, after an expected clearing of the Upper Green.
Pinsky said even though his filing was rejected, the city will still be violating the anti-lockout law if it rolls out the bulldozers Wednesday.
“The law’s on the books — it’s illegal for them to do that,” he said.
Pinsky said the state law requires advance notice, then a summary order from a judge, before a landlord can change the locks on a tenant.
“When they came with those bulldozers and payloaders and guns, they were not following the law” during last week’s halted eviction, Pinsky said.
Pinsky said his suit asks for an injunction against the city “that they not lock them out of their place of residence” before following proper eviction procedure through state court.
If he refiles the complaint, Pinsky would have to convince a judge not just to hear a motion for a stay, but also to rule that the protesters have effectively become “occupants” (in the non-political sense) of the Green.
Max Brunswick, a New Haven housing attorney, said “there’s a good argument that they would have had to have been evicted,” according to the process set out by state law. The Occupiers clearly aren’t tenants, he said — they don’t have a lease — but they may qualify as “occupants.” That’s akin to a long-term house guest, and occupants do have to be formally evicted, he said.
“You wouldn’t have a right to stay there, but you’d have to be evicted before they can put you out,” Brunswick said. “That would be the argument.”
If protesters successfully registered to vote using the Green as their address, or forwarded their mail there, that would bolster their case, he added. Some of the positive statements made about the protesters by city officials, at least early in the camp’s history, might also be seen as permission to stay there, Brunswick said.
In a statement, Victor Bolden, the city’s top attorney, was dismissive of Pinsky’s latest legal maneuver.
“Given the recent rulings by both the U.S. District Court and the Second Circuit Court of Appeals, any further legal efforts to prevent the City of New Haven from enforcing its laws on the New Haven Green should be seen for what they are: frivolous attempts to undermine the rule of law,” Bolden said.
Gwyneth Shaw contributed reporting.