Non-Rent Amounts Included in NonPayment Petition

[littlefrogmorton]

I recently answered my nonpayment petition, contesting service and the amount owed. When I went to court for my first hearing date the legal aid attorney told me the petition was defective because it included non-rent amounts including monthly dog fees, air conditioning and utility surcharges. I live in a Mitchell-Llama co-op, so the nonpayment is for maintenance.

The legal aid attorney advised me to file a motion to amend answer to include the non-rent amounts defense and asking for summary judgment dismissing the case -- she stated that these non-rent amounts are cause to have the petition dismissed, which will give me more time to save up to pay, plus put me in better negotiating position generally.

The only info I could find online suggests that late fees, taxes, and other additions to rent can be included in the petition as long as they are itemized. Are these different from dog fees and other surcharges? These amounts were itemized in the attachment to the petition.

Any advice appreciated.

[TenantNet]

Try to get a free attorney if you can. Look at Right to Counsel. I don't know if they still restrict it to people with low(er) income. However it's hard for anyone to get one due to the COVID backlog. If your experience in court was like mine, they gave you about 30 minutes of "advice" and cut you loose.

If you answered in person, make sure the court clerks write down everything you instructed them to do. They have a habit of leaving things out.

I believe that even for non-RS tenants, LLs can't seek non-rent items like dog fees, etc. They can seek rent, or in some cases "use and occupancy," which is really rent under a different name. My LL is seeking non-rent items from 15 years ago. That's also beyond the six year Statute of Limitations.

Now, I'm not an expert of ML tenancies (and as you say, it's a coop, not rent-but technically-to purchasers of shares, they might treat it as rent.) I think your rules are very similar to RS rules. (which is why you should get a lawyer). Even if you know how to do things, the LL's atty and judges will treat you better if you have a lawyer. Otherwise they will just tolerate you.

Yes, you can file a motion to amend (and include a copy of the proposed amended answer with the motion). You can ask for Summary Judgment (MSJ) or a Motion to Dismiss (MTD). From what you've said, I think a MTD is more appropriate. A MSJ is more on the merits, not a technicality. But get some legal advice on that.

I would also look for reasons to oppose the fees on the merits, if there are reasons to be had, and just in case the court will not dismiss. Judges have a way of accepting your amended answer and allowing the LL to amend the petition. Yes that sucks, but it happens.

We have an article on late fees somewhere on this site - poke around and you'll find it. Also look in the Reference Section of the Forum. Usually late fees are allowed if stated in the original lease and not usurious.

For the other items, I don't know. Get someone who knows ML law.

[littlefrogmorton]

Thank you so much for the info. The legal aid thing wasn't even 10 minutes but she seemed absolutely certain dog fees cannot be demanded in a nonpayment petition. And your point about the merits is well taken. I actually do have a merit argument on the dog fees because two of my dogs died a couple years ago and they have still been charging me. I take your point about the dismissal versus SJ as well.

Yes, I am thinking of taking on an attorney, if only in an advisory capacity to keep the fees down. I used to work as a paralegal and so would draft and read legal docs all the time. I figure I could handle it but maybe you're right and I should get full representation.

I know that some things are different for co-op maintenance versus rent -- for example I don't think you can withhold maintenance to compel repairs while you can do so with rent, but that's about where my knowledge of the differences ends and I don't have a westlaw/lexis account to research it.

I found this guy: https://www.nyctenantslawyer.com/ and am planning to set up a consultation and see how I like him.

Again, thank you so much!