article 78

[kat]

an amazing thing happened to my tenant group in October- we won our 4-year long Adminstrative Review case on an MHD! we never expected to win, but the DHCR made a clear and concise decision in the favor of the tenants and our right to Rent Stabilization.
of course our landlords have filed an Article 78.
our case was very solid and reams of material were presented to the DHCR.
question: what do the tenants do at this point?
our excellent lawyer told us that it would be nearly impossible for us to lose at the supreme court level due to the fact that the LLs lawyer would have to prove our case was frivolous in the first place (which it was NOT).
however, our excellent lawyer ALSO asked for an additional retainer (a large sum) in order to "fight" this "New" case.
it was my understanding that at the supreme court level, it is more of a review of materials already submitted: no further evidence was necessary and therefore, no legal assistance should be necessary, either.
Any input?

[Aubergine]

Originally posted by kat:
"an amazing thing happened to my tenant group in October- we won our 4-year long Adminstrative Review case on an MHD! we never expected to win, but the DHCR made a clear and concise decision in the favor of the tenants and our right to Rent Stabilization."

For the uninitiated, what kat is referring to is a "horizontal multiple dwelling" (HMD, not MHD), two or more buildings which are legally treated as one for the purpose of determining rent stabilization coverage.

of course our landlords have filed an Article 78.
our case was very solid and reams of material were presented to the DHCR.
question: what do the tenants do at this point?
our excellent lawyer told us that it would be nearly impossible for us to lose at the supreme court level due to the fact that the LLs lawyer would have to prove our case was frivolous in the first place (which it was NOT).
however, our excellent lawyer ALSO asked for an additional retainer (a large sum) in order to "fight" this "New" case.

It would be a big mistake to think that an article 78 proceeding doesn't pose a serious threat of an adverse outcome. Yes, the legal standard is different and higher for the LL, but the LL has a lot at stake and will probably spend whatever is necessary to fight RS coverage. DHCR is the actual respondent in a proceeding challenging its determination, so its lawyers are supposed to defend its position. You would be well advised to discuss the situation further with your attorney (and others, if you see fit) and get a clearer idea of what could happen if the tenants do not participate at the article 78 stage.

it was my understanding that at the supreme court level, it is more of a review of materials already submitted: no further evidence was necessary and therefore, no legal assistance should be necessary, either.
Any input?

Actually, the fact that no new evidence is to be introduced makes legal research, analysis, and argument all the more important at this stage. But see your attorney to find out more about the role he/she sees the tenants playing in the article 78 proceeding.

<small>[ December 14, 2005, 09:59 PM: Message edited by: aubergine. ]</small>

[Concourse]

Has the DHCR ever been known to throw Art. 78s in cases adverse to LLs, or are they pretty good about fighting those cases? Anyone know?