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Residential tenant being sued in commercial court

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Residential tenant being sued in commercial court

Postby Tenant123 » Fri Dec 02, 2005 12:00 am

Has anyone been in a holdover situation like mine?
I was rented a cellar apt. 14 years ago where the landlord gave me a commercial lease (he said he had to for zoning reasons but "not to worry", as he told me he has always used the apt. residentially and he altered the lease to say he would charge me rent stabilized increases each year and ). He has done so each year for 14 years. He is greedy and anxious to get the apt. back to get higher rent and now he is trying to evict me (in COMMERCIAL part of housing court) because he is pretending he rented it to me as an office all these years and just found out I live there and he has no certificate of occupancy for it. He refused to take my rent checks starting this Oct. and I was paying about $1,000 a month per my lease, which he terminated Nov. 1. His attorney sent a petition stating not only that she wants to evict me for violating "an essential something... of the lease" but she wants me to pay $2,500 a month for the months he would not take rent, retroactive to OCt. 1!!! Lawyers I had gotten consults with told me that: 1)he is not entitled to that rent ever and can't collect again until and unless he corrects the c.o. They also said that 2)eviction is the LAST remedy in this situation, not the first. They said the burden is on the landlord to prove the apt. cannot be legalized and if he does not make a diligent effort to legalize the apt. and prove it is impossible, he cannot evict me.

Anyone know which law shows the landlord must prove the apt. cannot be legalized before he can evict me, and that he must try to legalize it?

Also, I was told I would be treated much worse in the commercial part and that the judge would not understand the protections residential tenants are supposed to have by law. Does anyone have experience as a residential tenant being sued in commercial part? Any info is greatly appreciated.

Also, any case summaries similar to my case are also greatly appreciated. I am representing myself and need all the precedents I can find.

Thanks!!!
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Re: Residential tenant being sued in commercial court

Postby Downtown » Fri Dec 02, 2005 9:51 am

You really need an atty. for this. If I read correctly, had a lease still in effect that LL is now claiming terminated due to illegal use as living.
Minimally, would be best to get case removed/dismissed from commercial (as they do evictions much faster and with less cause). LL goes into this with dirty hands, as she was obviously aware after 14 yrs. that kitchen and bathroom (which were probably supplied or agreed to let you place) were there....now asking court to clean up their illegal deal.
Frankly, you would have to see if your place could be legalised (zoning, DOB regulations concerning basement apts.) If not then you might be fighting a lost cause.
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Re: Residential tenant being sued in commercial court

Postby lofter1 » Fri Dec 02, 2005 10:16 am

You might also want to consult a registered NY architect / engineer to determine the possibility / probability of legalizing your unit for residential use. Of course this might only be necessary if your intent is to continue using this unit as residential.

Are there other residentially occupied units in this building? If so, how many?

<small>[ December 02, 2005, 09:17 AM: Message edited by: lofter1 ]</small>
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Re: Residential tenant being sued in commercial court

Postby Aubergine » Fri Dec 02, 2005 12:21 pm

Are you in a cellar or a basement? In a private dwelling (1- or 2-family) or a multiple dwelling?

From HPD's website:
What are the rules about living in basements and cellars?

Basements and cellars are very different. A basement is a story partly below curb level but having at least one-half of its height above the curb level. A cellar is an enclosed space having more than one-half of its height below curb level.

Basements and cellars of multiple dwellings may not be occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the New York City Department of Buildings.

Cellars in private dwellings can NEVER be lawfully rented or occupied. (A secondary kitchen for accessory cooking may be located in the cellar so long as approval from the Department of Buildings is obtained prior to the installation of such kitchen.) Basements in private dwellings can NEVER be lawfully rented or occupied unless the conditions meet the minimum requirements for light, air, sanitation and egress, and have received approval by the Department of Buildings. (Since the rental of a basement in a two-family dwelling would result in a conversion from a private dwelling to a multiple dwelling, basements of two-family dwellings may not be rented unless the entire building is in compliance with the New York State Multiple Dwelling Law.)

Owners with illegally converted basements and cellars may face civil and criminal penalties. Occupants of illegal basement and cellar apartments face potential dangers such as carbon monoxide poisoning, inadequate light and ventilation and inadequate egress in the event of a fire. Occupants of illegal basement and cellar apartments may be ordered by the City to vacate or leave any illegal basement or cellar apartment.

For more information and/or complaints concerning illegal basement or cellar apartments call the City's Citizen Service Center at 311. Complaints will be directed to the New York City Department of Buildings.
http://nyc.gov/html/hpd/html/about-us/faqs.html#cellar

The Department of Buildings has a useful pamphlet about illegal conversions:

http://www.nyc.gov/html/dob/downloads/pdf/dob_Illegal.pdf

South Brooklyn Legal Services has a fact sheet titled "Eviction Proceedings in Illegal Apartments": http://www.sbls.org/lntfs5.htm

<small>[ December 02, 2005, 11:47 AM: Message edited by: aubergine. ]</small>
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Re: Residential tenant being sued in commercial court

Postby Tenant123 » Sat Dec 03, 2005 2:15 pm

Thanks all!
To Downtown's reply:
Actually I am not at all culpable myself. The landlord and his real estate agent presented this cellar apt. to me for the purpose of living in. He told me it would be rent-stabilized and he charged only r.s. increases all 14 years. The apt. was already completely equipped with full kitchen and bath and I know a previous tenant that lived there (although she won't testify b/c our super is her landlord--all very incestuous here). When I brought my checks to the landlord and r.e. agent to pay for the new apt., they gave me a commercial lease saying it was to be used as an office. I asked them why. They said something about zoning but "not to worry. we always used it residentially. We will alter the lease to say it will be charged at r.s. rates and can be renewed indefinitely." They did that. We all signed and initialed. They already had my money and I believed them b/c I always thought when people change a contract the new contract is binding...

I cannot afford a lawyer at all. I have no income at the moment. I consulted with recommeneded tenant attys referred from housing orgs and they all said the case would cost about $20,000 in the long run. I contacted every single pro bono tenant org. in the city and no one would help. I can only go into court on my own.

I was totally scammed and I can't believe he will get away with this. He is trying to now collect 2 1/2 time the rent for each month since he terminated my lease in Oct. and his attorney is requesting the highly overblown amount of $5,000 in fees.

The lease is commercial, but he altered it and always intended and treated it as residential all 14 years.

Plus he only brought this court action 2 months after I was forced to call HPD about a huge problem he would not fix. He threatened me with a knife that day as well. That is normally considered retailiatory.

He had been menacing me to move out for years now.All because he wants more money for the apt. I was never even late on my rent once and have done nothing wrong as a tenant.

I asked the first judge to dismiss and he said only a trial judge can dismiss so he scheduled a trial for Dec. 21.

You see the post here that refers to Brooklyn South web page. It says illegal apts. cannot be tried in housing court but must go to Supreme Court. That's what lawyers told me too. But does housing court also mean commercial housing court? That is a part of housing court too.
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Re: Residential tenant being sued in commercial court

Postby Anna » Sat Dec 03, 2005 7:39 pm

1. Can apt be legalized? is apt in cellar or basement? what is lot zoned for?

2. Proceeding should be in regular housing court, not commercial division. search the HDC's for similar cases: search for 'commercial'.
http://tenant.net/Court/Hcourt

3. What does your certified copy of the CO say about your apt? MDL 302 = no rent due if not on CO.

4. Resolution judge could have dismissed; trial judge can dismiss. Have you considered asking an atty to help write a motion to dismiss, instead of asking them to represent you in court?
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Re: Residential tenant being sued in commercial court

Postby Aubergine » Sat Dec 03, 2005 8:57 pm

Trying to think creatively about this, I wonder if there might be a chance that the tenant here could invoke the perpetual renewal clause and sublet the apartment for commercial use. Depending on the location, that might be a commercially viable proposition for a below-curb-level Manhattan location. Commercial leases often do not restrict subletting as strictly as residential leases. Who knows, the tenant might be able to turn a profit if the right tenant could be found.
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Re: Residential tenant being sued in commercial court

Postby Downtown » Sun Dec 04, 2005 11:32 am

Still need to answer the important question...can apt. be legalised for residential.
Aubergine's suggestions were spot on.
Retaltory eviction can be used as a defense.
Bottom line....is unit legal or can be made legal for residential or just commercial use.
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Re: Residential tenant being sued in commercial court

Postby Tenant123 » Fri Dec 09, 2005 6:39 pm

I've been told by many lawyers that no one knows at this point whether it can be legalized. They say the burden is on the landlord to prove it CANNOT be legalized, which can take a long time and requires him hiring architects and getting tons of specs on the place. Supposedly, he cannot evict until he has proven it is incapable of being legalized. And supposedly he is not entitle to any rent until and unless he is able to legalize. I hope that is all true. There is case law on this site where that IS exactly what courts decided....
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Re: Residential tenant being sued in commercial court

Postby Downtown » Sat Dec 10, 2005 10:35 am

If your apt at least meets the above curb height requirements then your chances are much improved.
Really do need to get this moved out of Commercial Court, which should be your first priority.

<small>[ December 10, 2005, 09:36 AM: Message edited by: Downtown ]</small>
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Re: Residential tenant being sued in commercial court

Postby Tenant123 » Sat Dec 10, 2005 2:54 pm

I am trying but the first judge (from whom I got one adjournment) said only the trial judge can dismiss a case. He said he himself was not able to dismiss or move a case to residential part of housing court. He set my trial date for Dec. 21. I don't know if I can ask for dismissal of that new judge before he starts the trial or if he will insist on hearing all the evidence first.

Lawyers are outrageously expensive and I understand trials can go on for days, racking up the hourly charges to the tune of 1,000s of dollars a day. I can't possibly afford that.

As for the below-curb-level situation, to get to my apt. you enter the building by walking down about 9 steps from the sidewalk and entering the lobby of our building. My front door is same level as lobby--my apt. faces the back, not sidewalk. But there is a secondary egress in my apt into a backyard. I actually step DOWN from my floor level to get into backyard. So, compared to front of building where curb to street is, I am more than 50% below curb level. BUT in back I am fully above ground level, with full size large window and full size door with window in it. Some lawyers say this fact will make the "curb level" issue harder to determine and possibly go in my favor.
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Re: Residential tenant being sued in commercial court

Postby Anna » Sun Dec 11, 2005 4:15 pm

Originally posted by Anna:
1. Can apt be legalized? is apt in cellar or basement? what is lot zoned for?

2. Proceeding should be in regular housing court, not commercial division. search the HDC's for similar cases: search for 'commercial'.
http://tenant.net/Court/Hcourt

3. What does your certified copy of the CO say about your apt? MDL 302 = no rent due if not on CO.

4. Resolution judge could have dismissed; trial judge can dismiss. Have you considered asking an atty to help write a motion to dismiss, instead of asking them to represent you in court?
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