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Continuing with a counterclaim when LL case is discontinued?

NYC Housing Court Practice/Procedures

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Continuing with a counterclaim when LL case is discontinued?

Postby mookie55 » Wed Aug 28, 2013 2:37 pm

Greetings! I was hoping someone might clue me in on some Housing Court issues that I'm finding confusing...

I've been served with a Petition in a nonpay case. The landlord's filing was total garbage and would never hold up, and so she's attempting to discontinue the proceeding, and presumably just turn around and re-file. Rather than let them do that, I wanted to attempt to keep a warranty of habitability claim alive in the case and have that continue to trial, rather than let them discontinue. Is that something that can be done? Anyone know the approximate legal basis for going forward in that manner?
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Postby TenantNet » Wed Aug 28, 2013 3:11 pm

Yes, LLs can discontinue a case and re-file. If you can, have the order of the judge be on the record and have it recorded (some forget to turn the tape recorder on) and red into the record. Try to get it "with prejudice" meaning the LL can't bring the same claim again.

If you want to keep your counterclaims alive, tell the judge there are counterclaims and you're not dropping your claims. The judge may, or may not, buy this.

But if the judge won't put the LL's claimed as "with prejudice," then your claims need ti be without prejudice, meaning you can assert them in any new case.
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Postby mookie55 » Wed Aug 28, 2013 5:25 pm

TenantNet wrote:If you want to keep your counterclaims alive, tell the judge there are counterclaims and you're not dropping your claims. The judge may, or may not, buy this.



Thanks for your response, I appreciate it!

Any thoughts on what a dividing line might be for the judge 'buying' it or not? The counterclaim will pretty much be a straight forward warranty of habitability claim -- the landlord isn't doing repairs.

Also, am I correct in thinking that if I can get the judge to keep the counterclaim alive and not close out the case, that the landlord can't start a new case until the current case is complete? That would of course be a nice benefit of keeping this going.
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Postby TenantNet » Wed Aug 28, 2013 6:13 pm

the dividing line is essentially how lazy the judge is. They will say you can reassert the counterclaims when the LL brings the case again.

They will tell you to bring a HP action in order to get repairs done. this is improper in our opinion. If repairs are not getting done, the court should deal with it whether or not it's a defense to a non-payment, a counterclaim or a HP Action.
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Postby mookie55 » Wed Aug 28, 2013 7:15 pm

Hey, thanks again!

My next court date is about a week off -- I'll stop by and let you know how things worked out.

Enjoy the holiday weekend.
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Postby TenantNet » Wed Aug 28, 2013 8:17 pm

Stop by where?
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Postby mookie55 » Wed Aug 28, 2013 8:42 pm

sorry, I meant stop by on this thread....
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Postby TenantNet » Thu Aug 29, 2013 1:07 am

That's good as we're not in the courthouse.
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Postby mookie55 » Wed Sep 11, 2013 12:26 pm

o.k., so I got to court on this, and mentioned I would post following that appearance. Things didn't go swell, but I'm still in the ballgame, and could use some help if anyone here might have some answers.

First, the Judge was ready to just dismiss the landlord's case, make them start over again, and let that be the end of it. That part, I suppose, is good but what I was attempting to accomplish was to have their case dismissed while allowing my counterclaims to continue. The judge didn't seem so keen on that, saying doing it in that manner would take up time and resources when I could just raise my counterclaims again once the landlord re-filed his non-pay. I got a a brief adjournment because I hadn't received the landlords answer, and they were trying to get me to respond on the fly -- I told the judge that was improper, and that as a layperson I needed time to evaluate and research what they had to say. The Judge didn't give much time and wanted to end this right then, but I persisted and was able to get a few days.

So what I need to try to figure out is the legal basis for asking that counterclaims continue while dismissing the landlord's side of the complaint. If anyone knows of some cases that might point me in the right direction it would be fantastic, since the Judge clearly didn't have much interest in what I had to say, and wasn't giving me much time to get to a law library and try to research this. So in this instance, I could use someone pointing me in the right direction. Based on how the Judge acted, I know this probably won't go my way, but if I can at least present an argument that's on track, maybe I can look at an appeal on it.

So again, what I'm attempting to present is a legal basis for dismissing the landlord's case, while continuing with my counterclaims. Any ideas?

Thanks.
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