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Landlord is preventing an appeal!??

NYC Housing Court Practice/Procedures

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Landlord is preventing an appeal!??

Postby bbly » Fri Nov 16, 2007 4:03 pm

I recently went to court with an old landlord for security deposit. she countered it with a claim of $1400 in damages she says we did. we lost and now owe her $700 of that.. we have proof that we did not do anything to the apartment and the jusdge did not look at it. we also have proof the pictures she submitted where not of our apartment.
We are trying to appeal it but we can not until she Files the judgment with the County Clerk. she is refusing to do so because she knows we want to appeal the city judges dissesion. Any advice? can we force her in some way to file it with the County? :evil:
bbly
 
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Postby TenantNet » Fri Nov 16, 2007 4:10 pm

I may be wrong here, but the time to appeal doesn't start running until a decision is entered. I think the winning party usually enters the decision, but I think it's possible for the losing party to also enter the decision.

Not sure which court you're in but appeals get VERY tricky and you should have legal counsel or advice.
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Landlord stopping appeal

Postby bbly » Fri Nov 16, 2007 6:08 pm

The original judgement was made by the city court judge against us. In order to appeal it we have to have the case transfered to the County Court. We talked to leagal aid. The only one available for our Counrty happens to be the Family Lawyer of our Landlord.

When we went to file the appeal papers with the County Clerk she told us that we can not file an appeal till our landlord files the Transcript of Judgement with them. The clerk told us that she has seen Transcripts of Judgment that are quite a few years old. Now we are forced to
bbly
 
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Postby cardinalfang » Fri Nov 16, 2007 6:26 pm

Your question did not belong in the Housing Court forum, since this was a small claims case in the Auburn (?) City Court. Anyway, the first question I have is whether the judgment was rendered by a judge or by a referee or arbitrator. If it was rendered by a judge the judgment is appealable, but if it was issued by a referee or arbitrator, it is not appealable.

Uniform City Court Act § 1703 governs the time for taking an appeal from a small claims judgment:
§ 1703. Appeals; practice and procedure in general
(a) Practice and procedure on appeals shall be as provided in article 55 of the CPLR except insofar as this act or the rules of this court consistent with this act otherwise provide.

(b) An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:

1. service by the court of a copy of the judgment appealed from upon the appellant.

2. service by a party of a copy of the judgment appealed from upon the appellant.

3. service by the appellant of a copy of the judgment appealed from upon a party.

Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section.


Note the provision, "whichever first occurs."

If neither the court nor the other party has served a copy of the judgment on you, I see no reason why you could not obtain an entered copy of the judgment from the City Court clerk and serve it on the other party.

By the way, an appeal is taken only from a judgment or order, not from a decision. An appeal taken from a decision instead of from a judgment or order will be dismissed.

Finally, you should be aware that review of small claims judgments is very limited. Pursuant to Uniform City Court Act § 1807, the sole grounds for appeal is "that substantial justice has not been done between the parties according to the rules and principles of substantive law." In addition, the record and evidence reviewed by the appellate court in any appeal is limited to what was before the lower court. If an appellant tries to introduce new factual evidence beyond what is contained in the record on appeal, it will be disregarded. So it is likely that the only way an appellate court will reverse based on proof that supports your case is if you introduced that evidence at trial.

Also, it is very rare for an appellate court to reverse a lower court's ruling based on a credibility determination by the trial judge. So if a trial judge hears several witnesses testify for both sides and decides to give little or no credence to some of that testimony, that determination will generally stand up on appeal.

Good luck.
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