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Mold, mold, mold!

NYC Housing Court Practice/Procedures

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Mold, mold, mold!

Postby Athena » Sun Feb 14, 2010 5:05 pm

I would like to reargue a nonpayment case with a counterclaim of mold in the cellar (I live right above it) seriously affecting my health with good proof from the Dept. of Health. In her judgment, the judge said I didn't explain how the mold got from the cellar to my apartment.
When I tried to explain that it traveled through vents, floor openings for pipes, etc, she would not allow it, nor would she allow medical records. My reargument would be based on the Warranty of Habitability clause about not needing an expert witness, and if that is not the case I can get an expert on mold from the dept of Health to come testify what any encyclopedia can inform you of, and what I would consider common knowledge.

How does one go about doing a reargument, and is there a statute of limitation on the time allowed to bring this up? The trial was 12/10/09
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Postby NYHawk » Sun Feb 14, 2010 6:37 pm

"reargument" is about asking a judge to reconsider a decision made after a motion not a trial. There is a 15 day time limit to ask a judge to reconsider a post trial decision. So it's too late to do that.

And you have 30 days to serve file a notice appeal to challenge a losing post trial judgment, (plus another 5 days if the landlord's attorney served it upon you with notice of entry by mail.) The 30 or 35 day period only starts to run when you get the notice of entry served by the other side. Getting it from the Judge does not count.

There is absolutely, positively no way to get an extension of the 30 or 35 deadline to file a notice of appeal. So, appealing to the Appellate Term is your only option, unless its too late. It's not a "statute of limitations" (that's the time limit to sue or counterclaim) it's a deadline.
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Postby TenantNet » Sun Feb 14, 2010 6:47 pm

One other thing to consider is that the case dealt with rent claimed by the landlord for certain months as being non-paid. As NYHawk advises, there are deadlines to reargue and to appeal.

But nothing is stopping you starting a new non-pay case (brought by the LL) for rent that you might withhold in the future. Or, you can initiate your own HP action proceeding.

It sounds as if the judge in the earlier matter didn't preclude you from bringing a new matter from either a landlord claim of estoppel or res judicata. But only a review of the prior case by a legal professional can really tell you if you have a shot with a new case on essentially the same grounds.
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Postby Athena » Mon Feb 15, 2010 1:58 pm

Thanks. I will undoubtedly go the route of withholding money one more time and get hauled into court again. I brought the matter of mold up in an HP Action and got the same answer, You haven't explained how the mold got into your apt from the cellar.
Considering both judges had a report in front of them from the Dept of Health stating there is mold in the cellar, which is extensive and must be removed (irregardless of where it is located) because it poses a threat to health of the building's inhabitants, it's gets pretty discouraging and I don't even know if bringing a mold expert to court would do it.
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Postby Sky » Mon Feb 15, 2010 5:38 pm

If you are being exposed to the mold and/or effects of mold in your apartment (not just presence in the cellar), can't you acquire some sort of inspection report to that effect, either by DOH or by a certified private testing firm? Then submit the report as evidence (I'm not completely familiar with legal protocol, perhaps with an affidavit from the testing individual).

You wrote your health was effected, do you have medical records and medical bills? Alternately (or parallel to warranty of habitability claim) why not bring a damages case outside the context of housing court?

FWIW, I had spoken to an individual last year who had a deep knowledge of mold/legal claims when I had mold in a closet from a leaking drain pipe.
There's lots of types of mold, some are quite toxic, even deadly. This individual believed that the courts, in recent rulings, had made it very difficult to succeed with a damages claim and he felt this was political. I would think you'd need to have bullet proof evidence from experts and would have to prove the type of mold, that it contaminated your apartment/building, that you were exposed to to this contamination, and that the exposure caused specific health issues.
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