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2 questions RE: non-payment eviction

NYC Housing Court Practice/Procedures

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2 questions RE: non-payment eviction

Postby Shoebox » Mon Feb 27, 2006 2:44 am

I'm behind 2 months in rent, and I just got a postcard from the court informing me that papers have been filed. I haven't got the papers yet, and am going down to court tomorrow to see what's up. I didn't have the $$, now I do.

I just looked at the Bar Association tenant guide.

1. I was never warned of eviction, orally or in writing, and in fact have never even been asked for rent in any manner. It's always been a pro-active process. The guide says that a warning or notice of eviction is necessary. Is this a solid defense? Or is that a technicality that LLs will try to fudge, and the court won't take seriously?

2. If I pay in full immediately, how open/shut can this be? I really don't want to deal with this, lawyers, etc... I've never been in trouble with this stuff before, with any LL.

Thanks in advance for any advice.. bitin' me nails.
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Re: 2 questions RE: non-payment eviction

Postby Downtown » Mon Feb 27, 2006 9:17 am

Do you have a lease...then probably nonpayment. Now that you have the rent have you offered to pay to LL.
Good news is paying ends a non-payment case. Would do this first (get a receipt). Then go to HC and respond that rent paid in full, no service of rent demand (oral or written). No service of petition.
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Re: 2 questions RE: non-payment eviction

Postby shirts and shoes » Mon Feb 27, 2006 10:40 am

Hi Shoebox,

Yes, no papers served can end a court case. This it what you should do - fill out the answer the court gives you and mark that you weren't served papers. Do you have repair issues? Put those down too especially if you have asked the LL to fix stuff. Bring your rent with you to court if you haven't paid yet - downtown advised you to send it certified/return receipt (you have to have proof that you sent it, bring that to court too). The LL will act like he didn't get it. Avoid signing a stipulation - you may be signing away your rights. Ask that the LL discontinues the case because you have the rent and the LL didn't serve a rent demand or court papers. Tell the LL attorney that you will demand a traverse hearing (this is a hearing about the papers not being served properly) if they continue with the case. The first time in court you will not be in a trial and the judge will try to scare you into signing a stipulation. Remember, LL should discontinue the case, don't settle for anything less.
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Re: 2 questions RE: non-payment eviction

Postby Anna » Mon Feb 27, 2006 11:03 am

Downtown probably meant to pay in person to LL's office & get a receipt; photocopy your check first. Black out or cut out your account number, then photocopy both 3 times: have clerk attach it to your answer.

Sewer service (where LL claims to serve papers but does not) is rampant: "I did not receive papers' is not enough to get you a Traverse Hearing. Get photocopies of the affidavits of service of both the Rent Demand Nad the Petition/NoP before your answer. Be prepared to tell judge or court atty specific details to refute the info in the affidavits, such as 'I was home & on the phone/internet when they claimed to have attempted service or served, & I have a printout from tel co to prove it" or "no one fitting that description lives in my apt" etc.

Get ATM acknowledgemant of LL cashing check before your first court date.Sewer service' is rampant:
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Re: 2 questions RE: non-payment eviction

Postby Shoebox » Wed Mar 01, 2006 4:01 pm

Thanks to all who answered. I've moved on the payment issue, official checks w/ return receipt.

but..

When I went to file the answer, I wasn't really on my toes. The clerk didn't ask me all the questions on the form, and I only realized my mistake as I examined the answer form on the train home.

I have checkmarks by:
5. "respondent was not asked, either orally...."
10. "There are conditions in the apartment...."

I wasn't properly prepaired didn't tell him to mark the line:
1. "The respondent did not receive a copy.."

Can I go back down and "re-answer", have them ammend my forms before the court date?

I wish I could send you guys a virtual cake or something, I appreciate people taking the time to answer my queries.
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Re: 2 questions RE: non-payment eviction

Postby Anna » Wed Mar 01, 2006 4:59 pm

Q: "Can I go back down and "re-answer", have them ammend my forms before the court date?"

Not exactly. However, one of the many procedural rules not mentioned to unrepresented tenants is that they have the absolute right to file an amended answer within 10 days of their original answer. No need to ask anyone's permission. Go to the Resource Center at HC, aka the pro se office, and they will help you complete their form & explain how you must serve it. In Manhattan, office is on 1st floor, ask anyone; it is open Thurs evenings 5-7pm, which is a very good time to go because they have less customers than during the day. If not Manhattan, find hours for yours on http://nycourts.gov/courts/nyc/housing/index.shtml
Did you also forget to mention the post-petition payment?

Before you go, read more about possible defenses & the HC process in the abcny booklet, 2006 version:
http://nycourts.gov/courts/nyc/housing/pdfs/tenantsguide.pdf

& other helpful booklets:
http://www.tenant.net/Court/cwtfhc/index.html
http://www.tenant.net/Court/Howcourt/contents.html

And remember! 'I didn't receive it' is not enough to get a Traverse Hearing, esp on a written [amended] answer! Be very specific.

<small>[ March 01, 2006, 04:10 PM: Message edited by: Anna ]</small>
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Re: 2 questions RE: non-payment eviction

Postby Aubergine » Wed Mar 01, 2006 9:10 pm

Re amending an answer "as of right" in eviction proceedings -- see Smith v Maya, NYLJ, July 23, 1999, at 30, col 5, 1999 WL 1037917 (App Term, 2d & 11th Jud Dists) (summary at http://www.tenant.net/Court/Hcourt/archive/1999/jul99.html ),* which held that the statutes permitting amendment of a pleading without a court order or stipulation do not apply in a summary proceeding:
"Neither CPLR 3025(a), which permits amendment of a pleading without leave of court within 20 days after its service, nor CCA 909, which permits such amendment within 10 days, can be considered applicable in nonpayment proceedings, which are more specifically governed by the RPAPL. Under the RPAPL, the time frame for nonpayment proceedings is highly contracted. For instance, under RPAPL 732, the notice of petition shall be made returnable within five days after its service, and the date for trial must be fixed 'not less than three nor more than eight days after joinder of issue'. Inasmuch it could not have been intended that an answer should be amendable as of right after a trial has been held, the period of 20 days or even 10 days to amend the answer as of right can not apply to nonpayment proceedings . . . ."
I have been told of Housing Court clerks responding to requests to amend an answer with "you can't do that." You certainly can amend your answer with a court order or a stipulation. While you might get away without one, why take chances? Make a motion, on notice or by an order to show cause, for leave to file an amended answer, including an affidavit stating your reasons and attaching the proposed amended answer in writing.

It is very possible to waive the defense of improper service by not including it in a responsive pleading. Whether you have already done so may depend on what county you are in. See Scherer, Residential Landlord - Tenant Law in New York § 10:37 (2006 ed.):
§ 10:37. Improper service of process/lack of personal jurisdiction--Defense waived if not timely raised

As a general rule, an objection to personal jurisdiction must be made at the time the respondent first appears in the proceeding, or before the time to amend the answer without leave of court has expired, or it is waived. Iacovangelo v. Shepherd, 5 N.Y.3d 184, 800 N.Y.S.2d 116, 833 N.E.2d 259 (2005). (A defendant is allowed to "add a jurisdictional defense to an answer by an amendment" as a right. This is consistent with CPLR § 3025(a), which gives a party 20 days after serving a pleading the opportunity to amend it without leave of the court, and CPLR § 3211(e), which does not explicitly state whether a waiver of personal jurisdiction occurs if a party does not raise it in their first responsive pleading.) Ordinarily the first appearance occurs when the respondent answers or makes a preanswer motion. CPLR 320(b); CPLR 3211.

The courts are generally strict concerning application of the rule requiring the respondent to raise personal service defenses at the first opportunity, except where the tenant is not represented by counsel.

Examples

• Where tenant withdraws a motion to dismiss that fails to raise the issue of personal jurisdiction, tenant may not be permitted to raise personal jurisdiction in a new motion to dismiss. Rinzler v. Kaufman, NYLJ 2/5/92 23:2 (Civ. Ct. N.Y. Co.).

• If tenant has defaulted, lack of personal jurisdiction must be raised when initial motion to vacate default judgment is made. Baer v. Lipson, 194 A.D.2d 787, 599 N.Y.S.2d 618 (2d Dep't 1993).

However, the Appellate Term, First Department has allowed a challenge to personal jurisdiction in an amended answer where the initial answer was made by a tenant who was unrepresented at the time the tenant originally answered. 3849 Assocs v. Utley, NYLJ 9/26/86 12:4 (App. Term 1st Dep't). The Appellate Term, Second Department has held to the contrary. See 601 Realty Co v. Osman, NYLJ 4/6/89 29:4 (App. Term 2d and 11th Jud. Dists.). See also Smith v. Maya, 1999 WL 1037917 ([App. Term 2d and 11th Jud. Dists.] 1999) (dismissing tenant's defense of improper service where tenant attempted to assert defense in amended, written answer drafted by tenant's counsel, but where the tenant failed to raise the defense in the tenant's oral answer submitted to the court when tenant was not represented).

Notwithstanding the Second Department's rule in Osman, supra, it has also held that a tenant's pro se appearance on the return date of a holdover proceeding did not constitute a waiver of the defense of lack of personal jurisdiction as no formal answer was interposed at that time and the court's adjourning the matter for the tenant to obtain counsel "in effect extended tenant's time to answer." City of New York v. Candelario, 156 Misc. 2d 330, 601 N.Y.S.2d 371 (App. Term 1993), aff'd in part, rev'd in part on other grounds, 223 A.D.2d 617, 637 N.Y.S.2d 311 (2d Dep't 1996).
* Note that Westlaw and Scherer's treatise incorrectly report this case as being from the Appellate Division; it was in fact an Appellate Term decision, as indicated by the named judges.
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Re: 2 questions RE: non-payment eviction

Postby Anna » Wed Mar 01, 2006 10:46 pm

HC clerks also routinely tell Ts that they cannot file a Pre-Answer Motion to Dismiss: Ts can file them, with the regular clerks, NOT with the oral answer clerks.

HC clerks also routinely tell Ts that counterclaims are limited to $25,000: they are NOT.

HC clerks also routinely tell Ts that Ts must specify the amount of the counterclaim: this is also NOT true; HC clerks sometimes refuse to write down the counterclaim if T can't put a precise $$$ amount to it, even when the counterclaim is for the warranty of habitability.

The AT2 was mistaken in Smith v Maya & this erroneous decision has not been cited by any higher or lower court that I am aware of. I have filed several amended answers in the past few years. Yes, it would not be possible to amend the answer IF a trial actually took place before the 10 days expire; but it is extremely rare that any case gets sent from resolution part to trial part on the very first day in court. To avoid conflicts, the amended answer should be served & filed BEFORE the computer-chosen first court date, even tho that is usually around 8 days.

Note: the AT2 not only upheld the HC court's award of a rent abatement but increased it to 30%. This defense & counterclaim were raised for the first time in the amended answer, filed as of right by her atty, Smith v Maya, NYLJ 1/8/98.
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