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Alleged assault focus of pretrial conference

NYC Housing Court Practice/Procedures

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Alleged assault focus of pretrial conference

Postby clajr » Fri Sep 20, 2019 10:24 am

My LL brought a "nuisance" eviction suit and, after 2+ years of pretrial motions arguing over the bill of particulars, we have been ordered to trial.

At the pretrial conference, the judge explained that the case would hinge on the LL's allegation that I "spit at and slapped" a bldg. employee. The LL has never specified a date or time for this alleged "assault," but I'm pretty sure they're referring to an argument I had with one of the owners at least 15 years ago. I was never interviewed by NYPD or charged with a crime. No order of protection was ever sought by the LL or employees.

The judge says that if she is persuaded that this "assault" occurred, she will decide in my LL's favor, and will deny my the extended stay offered by the new law that allows tenants up to a year to find a new apartment.

I researched the standard of proof for an assault charge and found that material evidence isn't necessary. So if the LL can tell a convincing story and hire a witness, he could win?

I feel like this is allowing a housing court judge to rule on a crime for which I've never been charged. Can this actually happen? I'm worried!
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Re: Alleged assault focus of pretrial conference

Postby TenantNet » Fri Sep 20, 2019 11:28 am

Do you have an attorney, and if so, who is it? These types of cases can get complicated, so I would suggest you retain - or at least consult - with an attorney. And see if Right to Counsel covers you. Check with Legal Aid, Legal Services and similar groups.

I can only comment on what you've told me here. Obviously this is a more complicated situation.

Nuisance, as opposed to a lease violation ... the rules can differ (although don't ask me).

I've seen cases where a one-time "nuisance" might not be sufficient to evict a tenant. However an assault can be addressed in other than housing court (i.e., criminal court).

I would think they need to be specific about the incident, i.e., where, when, what was said or occurred. Obviously, this (lack of specifics) is something to deal with at trial, I would think they should have to lay out the facts in the petition itself, else a motion could be made for dismissal for lack of cause of action.

That the police did not get involved and you weren't charge, IMHO, should help your position.

I haven't looked at that provision, but your case is/was pending at the time of the new law. See if the judge has discretion to exercise that provision, or not. Are you RS, or not? You didn't say.

In Lebovits's paper, page 12, he says: "In both nonpayment and holdover proceedings, courts statewide have discretion to grant an occupant a stay of up to 1 year; the demolition exception is abolished; there is an exception to court’s discretion if the proceeding is based on objectionable conduct or if landlord can establish that occupant is objectionable."
-- RPAPL 753(1), 753(3)
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Re: Alleged assault focus of pretrial conference

Postby clajr » Sat Sep 21, 2019 11:08 am

Thanks for your response.

Sorry for not giving you more info: I am a RS tenant (26 years), I have representation, pretrial motions to dismiss due to lack of evidence have been denied (we've been in pretrial motions for 2+ years).

As I explained in my original post, at the pretrial conference the judge went to great lengths to explain that if she were she persuaded that the assault allegations were true, she would not grant me the lengthy stay afforded by the new law.

Again, my question is that the case seems to hinge on a housing court judge adjudicating an assault allegation in the absence of an actual charge.
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Re: Alleged assault focus of pretrial conference

Postby TenantNet » Sat Sep 21, 2019 11:18 am

I'm just wondering why the pretrial motions haven't resulted in a dismissal (or discontinuance). If the LL's case is weak, or if the papers are defective to the point where they don't mention specifics, in my experience most HC judges would dismiss. Is there something else going on here? Are your attorneys sufficiently aggressive?

My personal opinion is that getting the case kicked is more important than worrying about an after-trial stay.

I do not know if a judge needs an actual charge (i.e., from the district atty), but they do need actual evidence, not just a story from the LL. (BTW, I am not an attorney, but you can always get a second opinion).
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Re: Alleged assault focus of pretrial conference

Postby clajr » Sat Sep 21, 2019 11:21 am

Of course, I wondered the same about my lawyer! The LL has never even specified a date, time of day, etc. Only the act and the place ("near the boiler room").

I appreciate your insight, but I think I need a lawyer to weigh in here. I'm also seeking second opinions.
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