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Jury trial waiver (Where do i find cited App. Term Cases)

NYC Housing Court Practice/Procedures

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Jury trial waiver (Where do i find cited App. Term Cases)

Postby Palombella » Sun Aug 12, 2007 4:16 pm

Hi Tenantnet

An holdover proceeding is open against my exgirlfriend (leaseholder) and me (undertenant).
She never appeared in court since she left before the case started.
As you know standard lease form contain jury waiver clauses.
My defense is claiming successorship as non-traditional family member since we have lived in the apt for over 2 years in a sentimental relationship. I already went through discovery and deposition.
the landlord does not recognize me as a tenant therefore he wants me out

I demanded a jury trial and paid the fee on timely manner.
They put in a motion to stike based on the jury waiver clause
The judge, disregarding a fully detailed aff. in opposition, and not considering that i am a non-signatory third party, granted the motion saying that since i am seeking successorship i am automatically bound to the jury waiver clause

Besides the non-sense of this decision, i would like to know where it is possible to look up App term 1st dep decisions and case law that judge cited in the decision/order granting the motion to stike.
I have already been to the law library on Centre street and the Librarian told me that there is no book or on-line source that provides App. term decisions.
However i did find one cited case law on tenantnet only because was from Civ .CT.
There is no case law cited in motion or in the Judge decision that applies to Non-signatory Third party seeking successorship.
They all pertain to legal tenants or legal successors.

Thank you for you time
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Postby elderlytenant » Mon Aug 13, 2007 5:36 am

It would appear that standard leases contain a clause that both parties are waiving right to jury trial, except in cases of personal injury and property damage.
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Postby cestmoi123 » Mon Aug 13, 2007 7:30 am

It's perfectly reasonable that someone who's claiming successorship rights under an existing lease should be subject to the terms of that lease (including a jury waiver). If you want to change the terms, you need a new lease, and if you're getting a new lease, you're a new tenant.

Why would the judge's decision be "non-sense"
Last edited by cestmoi123 on Tue Aug 14, 2007 3:34 pm, edited 2 times in total.
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Postby TenantNet » Mon Aug 13, 2007 8:48 am

How about answering the question instead of turning to the libertarian channel, eh?

First, there are certainly instances where certain provisions of residential leases are deemed unenforceable. For example, the legal fees provision one normally sees is usually one-sided on the lease and fails to provide that if the tenant wins (is deemed the prevailing party) then the LL might be liable for the tenant's legal fees.

There are other provisions that pop up on leases. So please, just because a lease says something, it does not mean that it is always so ... and assuming the OP can read his/her lease, probably knows what it says.

On the jury trial waiver issue, I've seen it go both ways even with a waiver. In some cases the waiver is not enforceable.

As for Appellate Term cases, first try Ecourts and then there's the Court of Appeals but for the AD and App Term go to the Reporting Bureau or even here.

On a situation like this, the tenant should probably consult a tenant lawyer to see what options exist (if any) to get out of this pickle, and if there's any hope on the merits of the case.
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Postby cestmoi123 » Mon Aug 13, 2007 10:44 am

If the OP is attempting to claim that he should be able to assume an existing lease, arguing that he's not bound by terms of that lease doesn't seem very wise.

Fully agree on the tenant's attorney point.
Last edited by cestmoi123 on Tue Aug 14, 2007 3:34 pm, edited 2 times in total.
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Postby TenantNet » Mon Aug 13, 2007 10:48 am

You absolutely miss the point. The question has nothing to do with the succession issue; it's whether the tenant has a right to a jury trial. It's a procedural issue, not on the merits of the issue.
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Postby Palombella » Mon Aug 13, 2007 1:06 pm

Dear Cestmoi
Since i am claiming successorship but the proceeding is still in dispute,and no position neither judgement has been taken yet by the court, it is non-sense to bound a non-signatory third party only to the jury waiver clause of the lease he never signed.
So Why don`t you bound me to all the clauses before we get to a judgement and give me a damn lease instead of arguing that i should be out?
If i am not a legal recognized successor i can not be bound to none of the terms of the lease. period ,end of the story!

Regarding the costitutional right issue,whether or not a tenant has the fundamental right to jury trial, based also on procedural ground,i give many thanks to Tenantnet for his opinion.
this has been a point fully explained in my aff. in opp. with plenty of US court case law, app div. case law and so on..
It seems that the the judge did not read my aff. and goes beyond the constitutional right and all the supporting case law that i cited, giving support to the case law the LL cited that does not pertain at all to a signatory third party.

I`ll surely go to the web sites Tenantnet provided me and find out this "supporting" case law my LL found.

Thank you
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lower courts mixed on this issue

Postby NYHawk » Mon Aug 13, 2007 4:05 pm

See Scherer's book at section 10:28, page 653.
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Postby TenantNet » Mon Aug 13, 2007 4:45 pm

Thanks to Kennny Hawco, a NYC tenant attorney (who also advertises here).

He's referring to "Residential Landlord-Tenant Law in New York" by Andrew Scherer published by the West Group. For those who run tenant groups, it's a good investment.

My edition isn't the most current, but the section to which he refers is:

10:28 Landlord must show third party adopted waiver.

Where the petitioner seeks to enforce a waiver against a nonsignatory third party the petitioner has the burden of proving that a jury trial waiver was adopted by that third party.

Example: A jury trial waiver was not enforceable against subtenants who did not unequivocally incorporate the jury waiver in their sublet agreement [Cantor v. Tecklease, Inc. 59 AD2d 699, 398 NYS2d 286 (2d Dept 1977)]
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Postby Palombella » Mon Aug 13, 2007 6:45 pm

Dear MR. Kenny Hawco and Tenantnet
I have already used the RLTL by Andrew Cherer
I put the section 10:28 in the aff. in Opp along with section 10:31 which says that " where a landlord fails to offer a renewal lease as commanded by law he/she may not come into court in relaiance upon that expired contract as a ground to strike jury trial demand"
The lease for my apt expired in oct 2004 and he started this proceeding only in feb 2006.
I also cited section 10:22 that refers to US court case law against jury trial waiver.


But the judge seems to be blind when he has to read those things!!!

anyway i did try those links that Tenant Net suggested me to look up App term decisions but they report only few selected decision and they don`t give access to the ones i need.

the judge is basically citing case law in his decision to waive jury trial and i don`t have access to them!!!

Please sombody tell me how and where i can find them
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Postby TenantNet » Mon Aug 13, 2007 7:42 pm

Just FYI, Kenny Hawco -- like others that advertise here -- is an attorney in private practice. On occasion he posts to this forum, but he's not doing so as an attorney and nothing he says here establishes an attorney-client relationship.

He may be contacted through his web site and like most attorneys, I would imagine he offers consultations. (I don't know if he charges for consultations ... most charge a reduced fee).

Disclaimer, while we have a relationship with Hawco (and other attorney advertisers) in that we derive advertising revenue from them, we do not receive any further fees or remuneration for tenant referrals.

Having said all that, you have a bad judge and most of them will ignore tenants as you are finding out. (what's the Judge's name?). What you are finding out is the reality that without an attorney you are often screwed in housing court.
Last edited by TenantNet on Tue Aug 14, 2007 8:23 am, edited 1 time in total.
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Postby Palombella » Mon Aug 13, 2007 8:31 pm

thank you TenantNet for the clarification about Mr Hawco position in this forum

I have gone to numberless of lawyers to get consultation, it seems that all of them gave me maximum 6 months time in my apartment before i was going to get kicked out
That was over 2 years ago, and since then i decided to do it myself so earning all this time in my nice apartment.

Legal aid af course would not even get me an appointment saying that my case was too complicated and of course i was not in a good position.

none of the lawyers that i was initially paying $200 an hour was giving me any kind of info or teaching about my case.
they were just adjourning and keep charging.

With this i don`t want to put down the professionality of any useful lawyer ,never then less Mr. Hawko.I thank him immensly for his suggestion.
The problem is not if you have a lawyer or not, the problem is that Housing Court is not a tenant friendly court.Not that Housing court should be friendly to any party, but so why is it so friendly to Landlords?

The only one that helped me so far in Housing court and that directed me on the right path ,and represented me in the court room for extremely reasonable fees,(i would say almost nothing compared to any lawyer`s fee and therefore significantly competitive) is Mr. Ray Richardson from Home Grown Inc.

Anyway, do you think i should go ahead and appeal this decision or go to trial,see what happens( i already know) and eventually appeal?

By the way the Judge`s name is J. Capella

Thank you
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get a new book

Postby NYHawk » Tue Aug 14, 2007 3:38 am

TN: please toss that ancient book. It's out of date.

Here is the 2007 version of section 10:28 (page 653) that is relevant:

a granddaughter who claimed succession rights in a licensee proceeding was not bound by a jury waiver clause in her deceased grandmother' lease, since she is not bound until she is adjudicated to be a successor tenant. ACP 301 East 69th Street Associates v. Blake, NYLJ, 10/29/97, p. 30, col. 1 (Civ. Ct. N.Y. Co.); but see Ragone v. Graff, 9/17/97, NYLJ, p. 26, col. 4 (Civ. Ct., N.Y. Co.).
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Postby Palombella » Tue Aug 14, 2007 1:51 pm

Mr Hawco
I have already cited the grandaughter case!!!
Been there done that!!!
What do you think?

Should I get seriously mad ?
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Postby TenantNet » Tue Aug 14, 2007 2:07 pm

Please remember, if any person who just happens to be an attorney posts on this board, they are not doing so as an attorney and any posting does not create a client-attorney relationship.

I can understand your plight, but Mr. Hawco is not your lawyer and you can't expect him to give you legal advice unless you consult or retain him. That's the case with any other lawyer or firm that advertises here.
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