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Error in Amount of Arrears on Court Papers

NYC Housing Court Practice/Procedures

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Error in Amount of Arrears on Court Papers

Postby lemmon » Sat Jul 03, 2010 10:12 am

I am the tenant of an unregulated apartment in downtown Manhattan.

After a series of appearances before the judge, her order on June 17 read:

"Respondent has shown no ability to pay rent arrears through June 30 of $9,000. Therefore the motion is denied, all stays are vacated. No further Notice of Eviction is Required."

I was able to obtain what is probably my last Order to Show Cause by showing I had $6,000, or about 2/3 of the arrears thru June 30.

On June 28, I went back to court with the $6000 certified check - when we went in front of the judge, the LL's attorney stated that the "$9000 arrears through June 30" in the June 17 document was wrong, and that the figure was actually $14,000.

The judge wrote that "the arrears as stated in the June 17 Order were incorrect, the correct arrears thru June 30 is $14,000. Respondent shows no ability to pay". She also said that she could not give me any more time, that "her hands were tied".

It all happened very fast.

Obviously I arrived at court prepared to address the $6,000 arrears. I was completely surprised by the revised amount and had no opportunity to prepare for or respond to that.

I was able to find two similar cases on tenant.net - in one case ( ), the LL made an error in figuring the "arrears" on the Stip itself, calculating the arrears as being less than the tenant actually owed. When the LL realized the error and tried to amend the stip, the court found that the LL "could not escape the consequences of his own careless actions", and the tenant was permitted to pay the lower amount, as initially set forth in the Stip.

In another (603-607 Realty Associates v. Etienne), the landlord's initial rent demand was defective by seeking too much rent. When the LL tried to fix this, he asserted to the court that the correction would be in the Tenant's favor and should be allowed. Nevertheless, the tenant's motion to dismiss was granted and the petition was dismissed without prejudice to service of a proper rent demand.

While neither of these two cases are perfect in comparison to the present situation, these cases do at least establish that a LL cannot necessarily correct a careless error it has made, without consequences.

Is there a basis to dismiss this case since the LL and his attorney have given two conflicting amounts for the arrears, and the judge has included these different amounts in her decisions?

If so, should this be done with another OSC, or should I file an Appeal in the Appellate Court?
Last edited by lemmon on Tue Jul 06, 2010 1:14 am, edited 3 times in total.
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Postby TenantNet » Sat Jul 03, 2010 10:30 am

There's something wrong with your story. When a LL brings a non-payment, they state what money is due, and for what months. They can amend the petition later, but that has to be served on the tenant. More over, you don't indicate where in the proceeding you are. Has there been a trial? If the judge made a decision on a motion, what was the motion?

Based on what you said, I don't understand how you can get a marshall's notice only a few days after a decision (which might have been a motion, not a trial). Usually they allow some time in order for the tenant to pay.

What did the judge base this on ... that you can't come up with the money? You had 4K and expected client payments soon. Perhaps you can get the rest some how.

And even with accelerated payments, they can't just walk into court and call them outstanding. There has to be notice they are calling them in (even if they are legal, which I wouldn't swear to).

Can you clear some of this up?
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Postby lemmon » Sat Jul 03, 2010 11:54 am

Hi and sorry about the confusion - thank you very much for responding..this has been ongoing for a while now and I will try to clarify things:

1. I fell behind in rent an was served with rent demand and then a notice in late March saying that I had to go to LT court to provide an answer.

2. After an adjournment, we negotiated a Stipulation of Settlement that included a pmnt schedule, along with the LL's promise to fix our windows, and also a free month rent for Aug contingent on fulfilling the payment schedule. The stip also included a final judgement and Marshals Warrant that would be stayed but would execute on my default.

3. I made my first payment but missed the second. Meanwhile, LL tried to fix windows but never finished his job.

4. I got a Marshal's 6 day notice to evict on June 1.

5. I went back to the 2nd floor and filed an Orer to show cause saying repairs were not made. The Marshal's Warrant was stayed and I got a return date for June 17.

6. On the morning of June 17, I arrived at court with a check for $3000. When we saw the judge the atty said they would not accept a check and judge denied my OSC and vacated the Marshal's stay. It is on the judge's ORDER that the figure of $9,000 was given as "the arrears thru June 30", that "Respondent shows no ability to pay".

7. I was able to get one more OSC and the judge gave me another day to come back, on JUne 28.

8. On June 28, I went back to court - when we went in front of the judge (conferenced?), the LL and his att'y told her that the $9000 arrears in the June 17 document was wrong, an that the figure was actually $14,000.

9. The judge wrote that "the arrears as stated in the June 17 Order were incorrect, the correct arrears thru June 30 is $14,000. And again she wrote: "Respondent shows no ability to pay".
Last edited by lemmon on Tue Jul 06, 2010 1:27 am, edited 2 times in total.
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Postby TenantNet » Sat Jul 03, 2010 1:27 pm

First, never ever consent to a stipulation with a "final judgment." That was your first mistake.

On the original petition, what was the amount the LL was seeking? Was it $6,000 or $10,000?

What was the amount listed on the stipulation?

While petitions may be amended, that would likely invalidate those portions of any stipulation, i.e., the amount of rent, that was changed in the amended petition.

What is the name of this judge? What borough?

At this stage you need legal help. You can try for another OSC, but I would get an atty. You should have gotten one when you knew you were in over your head.
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Postby lemmon » Sat Jul 03, 2010 3:57 pm

In answer to your questions,

Original Petition: $11,000 as of Feb 8.
Stip (which amended original petition): $12,000 through Apr 12

(Three things happened between Apr 12 Stip and the two June Orders.
1-- I paid $3000 and
2--May and June rent became due - $5,000 total) and
3--Technically, I suppose the stipulated arrears payments for July and August of $2500 each accelerated.

June 17 Order (through June 30): $9,000
June 28 Order (through June 30): $14,000

So it may be that the June 17 number was simply based on the $12000 in the Apr stip, less the $3000 paid.

The $14000 could be based on that figure (9000) plus the May and June rent, or

it could be based on that figure (9000) plus the scheduled stip payments for July an August of $2500 each, which assumes they accelerated the debt

In any case, when I appeared on June 28, the only number that makes sense to have prepared for is the one in the judge's June 17 order which would have been the most recent, unambiguous, and the easiest to figure out! That number was pulled out from under me by that "correction"!
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Postby TenantNet » Tue Jul 06, 2010 7:30 am

This is even more difficult to follow, for one reason, as the numbers don't add up. You don't indicate the monthly rent, but I could speculate it's $2500 as you say May and June are $5,000. But then you say that Feb 8 tyo Apr 12 is only a 1,000 increase, so who knows.

Second, you edited you previous posts several times. That makes my prior responses to you somewhat meaningless. Don't do that. People use the forum for research and they will be scratching their heads when I responded to the issue of accelerated rent when you removed that from your first post.

I can't fully respond to what the Judge did, if it was correct or not as mistakes happen, petitions get amended, and as you indicate, payments get made and additional months get added. We can't do all the arithmetic here.

Bottom line is that it appears the latest order says $14,000. Unless you're disputing the legal rent or what was paid, then there's not much to determine at a trial. I do not think an unpaid accelerated rent can be the basis for a dispossess, but I would seek a legal opinion on that.

Have you checked to see if the unit should be regulated? What's the history?

At this stage, it appears the Marshall's warrant say was vacated. I do not know if a new warrant is necessary. You should call the Marshall to see if that's the case. If not, you should get legal help as soon as possible. You're coming to us way too late in the process.
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Postby ronin » Sun Jul 11, 2010 8:26 pm

Thank you for explaining that the original post was edited. I was scratching my head trying to make sense of this whole thread!
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Postby TenantNet » Sun Jul 11, 2010 9:47 pm

The confusion comes when a poster goes back and edits an earlier post or posts. Then each reply might appear to be responding to something that is no longer there. Better to fix the mistake going forward. That is, unless the post is one of those with no capitalization or punctuation.
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