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Notice of Petition 28 Days After Full Payment?

NYC Housing Court Practice/Procedures

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Notice of Petition 28 Days After Full Payment?

Postby ChairmanNow » Wed Dec 04, 2013 5:47 pm

I was served a notice of petition for non-payment today despite having fully paid the demanded amount last month.

Sequence of events:

November 2: received a 5 Day Notice back-dated two weeks.
November 6: check for full amount specified in 5 Day Notice arrives at landlord's office.
November 12: called landlord, as the check hasn't been deposited
November 15: check clears

Today: I was served the notice of petition for the amount in the 5 Day Notice. Document is dated 11/20.

I called the attorney for the landlord, but they essentially said, see you in court. Landlord will not take calls.

I don't think I have anything to worry about in terms of an outcome in court - I have a cancelled check for the demand amount - but I'm pretty angry about this. If I have to go to court (i.e., not get a written dismissal from LL), is there anything that I can petition the court re: the LL's behavior? I'd really like to see them get slapped.

Better, I'd really love to avoid having to go to housing court to either answer the petition, or the subsequent trial.
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Postby TenantNet » Wed Dec 04, 2013 5:58 pm

Of course this is LL harassment, but you need to deal with it.

You will need to answer the petition, in court, ASAP. You defense will be that the amount has been paid. You can also raise other issues like lack of services or repairs, if applicable. See the court section on the website for more information on how to respond.

Get proof that the check has cleared. Contact your bank.

A recent case and decision in Federal Court could give you leverage with the LL's lawyer. The tenant attorney in this case is one of our advertisers. If you really want to slap them down as you suggest, just the threat of a case like this might make them back off.


Debt Collecting Firm Is Found Liable for 'Benign' Error
August 14, 2013
By John Caher
New York Law Journal

A debt collecting law firm that "blindly" relied on a client's records and mistakenly went after an 82-year-old tenant is liable for Fair Debt Collection Practices Act damages even though the slip-up was "benign" and it backed off immediately after learning of the error, a Southern District judge has held.

Judge Lorna Schofield stressed that the Fair Debt Collection Practices Act (FDCPA) is a strict liability statute, and while damages can be averted for a bona fide error, the standard is high.

She said attorney Alan Kucker and his Manhattan firm of Kucker & Bruh did nothing to confirm the accuracy of information received from a new client with no established track record of reliability.

The case centers on Rafael Lee, who lives in a rent-controlled apartment.

Since at least 1995, Lee has had a Senior Citizen Rent Increase Exemption, a benefit under which he pays a portion of the rent and the landlord gets a real estate tax credit equal to the balance. Consequently, while the legally collectible rent for the apartment is $790, Lee is responsible for only $401.

In early 2012, Kucker & Bruh began representing Mall Properties Inc. (MPI), the managing agent for Lee's building.

MPI reported to the law firm that Lee was delinquent on his rent. Based on that, Kucker & Bruh issued a "three day notice" advising Lee that eviction proceedings would be initiated unless he paid $1,125. Shortly thereafter, the firm began a summary eviction proceeding in New York City Housing Court.

Lee then retained attorney James Fishman, a consumer and tenant advocate with what is now Fishman & Mallon in Manhattan. Fishman advised Kucker that his client had a senior citizen exemption.

Kucker immediately checked with MPI and confirmed that Lee had the exemption and was not in arrears. The eviction proceeding was discontinued, but Lee began the FDCPA claim, which provides for statutory, strict liability damages.

Kucker initially alleged that Fishman had entrapped them into violating the FDCPA by withholding information about Lee's exemption until after the rent demand was issued. But U.S. Magistrate Judge James Francis IV (See Profile) noted that Fishman was not retained until after the eviction was initiated and "could not have enticed [Kucker] into acts they had already committed."

In the matter before Schofield, Kucker & Bruh argued that the firm was not liable for violating the FDCPA because it made a simple mistake and relied on information from the client.

But Schofield said the firm could not meet the three-part test to successfully assert a bona fide error defense. To qualify for that defense, the defendant must establish that the violation was unintentional, that it resulted from a bona fide error and that it had reasonable measures in place to avoid such errors.

Here, Schofield said, Kucker & Bruh's "sole procedure was to rely blindly on their client's business record." She said the firm should not have relied strictly on records from a new client, especially since those records, in addition to the failure to take into account Lee's exemption, contained an arithmetic error.

"While the court makes no finding of what procedures would have been sufficient, the absence of any procedures to avoid discoverable errors clearly is insufficient," Schofield wrote in Lee v. Kucker & Bruh, 12 Civ. 04662. "No reasonable jury could conclude that Defendants' procedures were reasonably designed to avoid the type of error that occurred in this case."

The matter settled last week for $22,000 in FDCPA damages to Lee and $108,000 in legal fees, according to Fishman.

Fishman said the ruling marks the first time a federal court has held a landlord's law firm liable in such an action. He said "high volume law firms that file dozens of cases at a time without making sure what they allege is accurate" are potentially on the hook for FDCPA damages under Schofield's decision.

"This will hopefully raise the level of practice in Housing Court and lawyers will now be held liable" for FDCPA violations, Fishman said. "I think this is a game changer in Housing Court. The level of practice there is pretty sloppy and hopefully this will cause a higher level of inquiry before cases are filed."

Fishman said his legal fees grew considerably after Kucker & Bruh "falsely" accused him of acting in bad faith and attempted to establish that he had hoodwinked them into violating the FDCPA.

Abner Zelman of Kucker & Bruh, who represented the firm and Kucker, did not return calls left with his office Monday and Tuesday.

@|John Caher can be contacted at jcaher@alm.com.
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Postby ChairmanNow » Wed Dec 04, 2013 6:13 pm

TenantNet wrote:Of course this is LL harassment, but you need to deal with it.

You will need to answer the petition, in court, ASAP. You defense will be that the amount has been paid.

Get proof that the check has cleared. Contact your bank.

A recent case and decision in Federal Court could give you leverage with the LL's lawyer. The tenant attorney in this case is one of our advertisers. If you really want to slap them down as you suggest, just the threat of a case like this might make them back off.


Thanks for the very, very informative response. If you can PM me Mr. Fishman's contact information, I'd greatly appreciate it - not seeing an ad anywhere.
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Postby TenantNet » Wed Dec 04, 2013 7:13 pm

The ad is at the top left of the site's pages (but below the navigation bar, not the very top). It rotates with other ads. Just keep reloading and it should show up.
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Postby Jezebel » Thu Dec 05, 2013 12:39 am

Or just google Fishman & Mallon.
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Postby TenantNet » Thu Dec 05, 2013 4:10 am

Just to follow-up, after you put in your answer in the court, they will give you a date to appear. You MUST show up on this date.

Unless you get a written discontinuance from the LL's attorney, you need to show up. I would even show up no matter what just to make sure.

If in court, it should be on a stipulation form and you should go in front of a judge to have it "so ordered." I would also try to get the stip ordered "with prejudice" so they can't bring it again for the same month's rent.

Just curious, who is this LL's lawyer? (if you don't want to put in on the forum you can send the name by privtge mail).
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Postby ChairmanNow » Thu Dec 05, 2013 3:56 pm

TenantNet wrote:Just to follow-up, after you put in your answer in the court, they will give you a date to appear. You MUST show up on this date.

Unless you get a written discontinuance from the LL's attorney, you need to show up. I would even show up no matter what just to make sure.

If in court, it should be on a stipulation form and you should go in front of a judge to have it "so ordered." I would also try to get the stip ordered "with prejudice" so they can't bring it again for the same month's rent.

Just curious, who is this LL's lawyer? (if you don't want to put in on the forum you can send the name by privtge mail).


I will be showing up, no worries. Attempts to reason with the LL are futile, and their logic is bizarre. They agree with this sequence of events:

- Check arrives no later than 11/6 (this can be substantiated)
- Check "lost in a pile" until I call about it on 11/12, cashed 11/15
- Demand petition "dated" 11/11
- Submitted to court clerk 11/20

Their take: once things start, they cannot stop it. So it was my fault. Oh, and they won't put anything in writing, but they "promise" not to move ahead. No, I'm not going to rely on a verbal LL promise :) See you in court!

LL atty in PM. Thanks for your great advice and feedback.[/list]
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Postby TenantNet » Thu Dec 05, 2013 4:12 pm

What do you mean by "demand petition"? No such thing.

For a non-payment, the LL must send you (with proper service) a 3-day Demand Letter. Some leases call for 5 days. That's a predicate notice, but it does not mean you are on an inevitable track to a court case.

Later they would need to serve you with a Petition and Notice of Petition. (usually put together in one document). THIS is when you are in court.

They can discontinue the case at any time after the Petition is served, but must do so in writing.
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Postby ChairmanNow » Thu Dec 05, 2013 4:17 pm

TenantNet wrote:What do you mean by "demand petition"? No such thing.


Edit: I'm not being clear and using incorrect terminology :( To clarify:

LL claims that a 5 day notice was served on 10/30 by mail. There is an affidavit to that effect. I never received it. The affidavit, strangely, has a description of my appearance.

A Notice of Petition was served yesterday, and it was absolutely correctly served.
Last edited by ChairmanNow on Thu Dec 05, 2013 4:21 pm, edited 1 time in total.
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Postby TenantNet » Thu Dec 05, 2013 4:21 pm

Slipping under a door is considered Conspicuous Place Service. It's legal if the LL (the process server) also send the same by regular AND certified mail.

The must also file an Affidavit of Service when they file the Petition in Court. You can go to the Court Clerk and examine the file to see what they claim is what happened.
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Postby ChairmanNow » Thu Dec 05, 2013 4:23 pm

See my post above (edited since your reply). When they served me, correctly, the Notice of Petition, it included an affidavit attesting to service of a 5 day notice by registered mail by a third party.

I never got a notification of such a mail; I did get a copy under my door.
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Postby TenantNet » Thu Dec 05, 2013 4:36 pm

Do they include the certified number? You can track that at the USPS website. Maybe it was lost, or maybe they didn't send it at all.
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Postby ChairmanNow » Thu Dec 05, 2013 4:39 pm

TenantNet wrote:Do they include the certified number?


Nope.
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Postby TenantNet » Thu Dec 05, 2013 6:06 pm

Then it should be challenged. But check the court file as well.
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Postby TenantNet » Thu Dec 05, 2013 6:09 pm

On that atty for the LL, we asked an attorney who has faced them in court. The take was that they do sloppy work for a bunch of investment bankers.
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