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Online Resource for Preparing a Reply?

NYC Housing Court Practice/Procedures

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Online Resource for Preparing a Reply?

Postby Sky » Fri Jul 17, 2009 2:43 am

Is there any online resource helpful in preparing a reply to LL's 'Cross Motion and Opposition'?

This is within the context of an HP case that I initiated. LL violated the Consent Order to repair therefor I filed a Motion to restore the case with civil penalties. LL is attempting to block this with 'Cross Motion and Opposition'.

I'm reluctant to even waste the time with the Po-Se attorney provided at court: last time I spoke with one she was lazy and basically said she couldn't give advice as she's not my attorney.
I have a week to provide my answer: I believe it would be an 'Affirmation and Reply'(?): I affirm why my motion should be heard and reply to the LL's opposition, is this correct? I specifically address each of the points the LL asserts and then add additional points of my own shedding light on history, events, and actions relevant to the case? It's my understanding I'd need to attach an affidavit....not sure what that should include.

On other matters I've been through the whole 'free legal assistance' scene where they talk to you but do NOT offer to represent you, like for example the NY Bar Association and various other tenant organizations...overall I feel they're a waste of my time. I'm burnt out on running all over the city chasing crumbs of legal info.

I'm thinking if there's a online resource that sort of walked one through the preparation of such a document, geared to the pro-se litigant and couched in layman's terms, I may be able to pull this off.


Postby NYHawk » Fri Jul 17, 2009 6:49 pm

there is no such on-line resource.

"I have a week to provide my answer" An "answer" is a special word in lawsuits. It does not apply here. An "answer" is the response to a lawsuit by the side that was sued. So an "answer" is not a word used concerning motion practice. Just trying to help you learn the lingo.

Other than that, you are basically correct. Your "reply" is your response to the LL's opposition to your motion. Your "opposition" is your response to the LL's cross-motion. Although not required or necessary I recommend that you not combine them into one document (as most people do). Keeping them separate allows you to more easily argue that what you are seeking by your motion has nothing to do with the relief the LL is seeking. The LL will try and mush everything together as a way to confuse the issues and/or the judge. You want to try and keep it all simple and separate from the LL's cross-motion.

So, you could have a "Reply Affidavit" and an "Affidavit in Opposition" -- that would be the correct name for those documents.

What relief did the LL cross-move for?

What is the basis of the LL's opposition?
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Postby Sky » Sun Jul 19, 2009 2:49 pm

NYHawk, thanks for the for clarification of an ‘answer’. I’m still very much ignorant of the procedures involved in the progress of a court case.

‘So, you could have a "Reply Affidavit" and an "Affidavit in Opposition" -- that would be the correct name for those documents.’

Are the affidavits separate docs from the Reply and Oppositon? For example, LL submitted 1) “notice of Cross Motion….”, 2)Affirmation in Support of Cross-Motion….”, and 3) Affidavit.

“What relief did the LL cross-move for?”
An extension of deadline in the consent order to correct violations, plus such other and further relief as court deems proper.

“What is the basis of the LL's opposition?”
LL’s argument is that she was delayed in repairs by ‘circumstances out of her control’: DOB issued a full audit of the job accompanied by a Full Stop Work Order (SWO). Also, DOB commissioner intended to revoke the permits if numerous objections from the audit were not resolved.
That’s the LL’s argument. However, there are other repairs in the consent order that do not require DOB permits, that were also not completed.

LL included no exhibits to support these claims. LL has a history of DOB violations, ignoring codes, SWOs, and violations for working against those SWOs…all her DOB problems are a result of her own deliberate subversion of the system, neglect, and irresponsibility. In six months, LL has violated three consent orders issued by this judge to repair these violations (2 with HPD, 1 with me). LL has twice denied HPD access to make repairs. These hazardous violations have been on record with HPD for over a year, LL has done everything in her power to avoid spending the money needed to repair them properly & safely, including suing me for damages and suing to evict me in a Holdover case, but she lost both those cases.

I probably should go to DOB and get an account of recent events…LL systematically lies about everything in and out of court. I know there was an active SWO issued, but I need to find out what actually happened at DOB. One problem is DOB knows I am involved in litigation and the supervisors are instructed not to discuss the situation with me. How do I find out the truth of what occurred between DOB and LL? I have less than a week to submit my court papers.

Thanks for the info.

Postby NYHawk » Mon Jul 20, 2009 11:43 am

You seem to know the facts pretty well. Your opposition and reply should be a repeat of what you said here. Keep it very simple and short and as straight to the point as possible. Judges don't have the time or the interest to read long arguments. Back up facts with documents.

Remind the judge that the burden of proving that the LL supposedly has had difficulty in complying with the order is on the LL, not you. And the LL has provided no actual proof other than self-serving statements, which is proof of nothing.

All you have to prove is the LL missed a deadline. That's it. That's easy.

Also, the LL's claim that it is seeking "An extension of deadline in the consent order to correct violations," is nonsense.

You can only ask for an extension BEFORE you miss a deadline.

When a party misses a deadline they are in "default." To fix that problem the defaulter must ask the judge to "vacate" the default. The standard for vacating any default is the same two-part test: (1) the defaulter must prove that it has a reasonable excuse for the default and (2) that the defaulter has a viable claim or defense that they will be able to prove if the default is vacated. The defaulter must satisfy both parts of the test to have its default vacated.

So, the LL is trying to play cute by disingenuously seeking an extension AFTER it missed the deadline. Be sure to alert the judge to this slick trick too. Be sure to use "default" and "vacate" in your response and state that the burden is on the defaulter to meet the two-part vacate test and that the LL failed to meet its burden. So, its default should not be vacated. Simple!

Good luck.
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Postby Sky » Tue Jul 21, 2009 6:34 pm

Your advice has been very informative and helpful NYHawk, thanks (are you an attorney)?

“And the LL has provided no actual proof other than self-serving statements, which is proof of nothing.”

Also included was a LL affidavit that pretty much repeated the Cross-Motion/Opposition: blame lavished on DOB for both their intervention and delays in scheduling meetings with LL’s architect.
True, currently no proof has been submitted, but can’t the LL introduce additional papers and evidence into his case, even on the day of the next hearing?

Would it be advisable for me to go to DOB to find out what exactly transpired with the LL, and if it contradicts the LL’s account, develop that in my opposition, perhaps with evidence such as certified DOB docs? Or, is it not my burden to have to present that?

I suppose the crux is if the judge thinks that the LL’s delay was ‘reasonable’ despite the LL’s deficit of evidence and if he buys the claim the LL will now finally repair things.

Postby Sky » Fri Jul 24, 2009 12:36 pm

Today is my deadline for submitting my docs.

I'm unclear of the format that is recommended:

Should my written reply correspond item-by-item to each of the LL's numbered sections? That is to say, the LL's Opposition is itemized with a few dozen points. Should I reply to each of these in an itemized fashion, or is a looser, general reply sufficient?

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