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Non-Payment Case: Initial Answer/Amended Answer?

NYC Housing Court Practice/Procedures

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Non-Payment Case: Initial Answer/Amended Answer?

Postby Sky » Tue Sep 07, 2010 2:09 pm

What procedures are available to a pro-se tenant answering the non-payment petition?

If a pro-se tenant appears in court and does the basic oral answer, with the clerk filling out the card w/checkboxes, can the pro-se tenant (or her council if she later retains one) easily amend the answer to include all the various defenses and counterclaims she will need?

Can an amended answer of this type be easily opposed by the LL and prevented, thereby destroying a large part of the tenant's potential case?

My instinct is to just fill out the card with the clerk as an initial answer. Then, when I have the time to research my case, I can amend my answer with all the applicable defenses and counterclaims (or, have an attorney file an amended answer). Is this a good strategy? Or, is it a mistake for a pro-se tenant to try to do an amended answer?

Up until what phase of the court case can a tenant amend their answer and still reasonably expect it to succeed?

Thanks.
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Postby ronin » Mon Sep 13, 2010 1:58 am

Your strategy is a good one if the HC wasn't such a LL pigpen, but in reality you should make the first answer as complete as you can.

This means making the lazy clerks check all of your valid defenses. I also like to have a written answer pro se and have the clerks check "see attached" in addition to checking off the regular form. It's the only way to submit affirmative defenses that are not on the forms.

When the time comes to amend your answer expect the Landlord attorneys to howl bloody murder. Any half-way neutral judge will just ignore them and allow your amended answer in. If you get a gung-ho pro LL judge you might have some problems, but you're screwed with a judge like that anyway. The failure to allow your amendment is a good grounds for appeal.

If you have an attorney the attorney is almost never limited by the pro se answer. To do so would make the right to counsel meaningless. But I have seen a crooked supervisory clerk in the Bronx try to block an attorney's answer as being out of time. Apparently this idiot thinks he is a judge rather than a clerk. Clerks take the papers or reject them for improper form- judges determine legal timeliness. Fortunately in that case the crooked idiot clerk was thwarted because a real judge had previously extended the time to answer in writing.

But this just goes to show that in addition to the crooked judges, the LL bar has developed relationships with crooks throughout the HC system who can fix cases even when the judge on a particular case isn't crooked.
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Postby lappert » Mon Sep 13, 2010 5:14 am

It's been some time since I had to deal with it, but if I remember, the CPLR allows an answer to be amended as-of-right up until the time that the landlord submits a reply, which might be a few weeks. After that, it's either on consent or by making a motion. Lawyers tend to give professional courtesy on consenting to things like that, but LL lawyers often treat unrepresented tenants like crap.

So to the housing court clerks. Many (not all) enjoy treating tenants like dirt. It's a power thing for them.
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Postby ronin » Mon Sep 13, 2010 7:44 am

Landlords aren't required to reply to an answer unless it includes counterclaims, and then their failure is a default. So no one should hold their breath expecting any such reply. I think you might be referring to the CPLR section allowing amendment as of right of the summons and complaint until the defendant has answered. But amended answers are also allowed excepting prejudice or waiver.

And yes, any modern Civil Procedure system should allow for permissive amendments, particularly of initial proceedings. The problem is that the judges and clerks of the HC don't care about any provision of the law which benefits tenants. And because the despicable mess of the RPAPL overlays the CPLR it gives them an excuse to cheat tenants of even the simplest due process rights.
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Postby Sky » Mon Sep 13, 2010 5:55 pm

I visited the pro-se attorney at court. The place was packed. I waited about 2.5 hrs and in the brief conversation, the attorney said she didn’t know about latches. She referred me to another women there who she said might know. That woman said I cannot seek damages for a counterclaim/abatement for breech of warranty of habitability in the non-payment case, that the judges will not grant it and I will need to bring my own civil case to seek those damages. After that, I was told I’d need to wait again to talk to another attorney: I waited another hour at which time they said they couldn’t see any more people and closed. It was a joke.

Well, I couldn’t get any good advice, so I went in to submit my answer to the clerk. The clerk at the counter said I had a lot in my answer (I wanted to declare the many defenses and counterclaims in effect: rent overcharge, rent checks returned undeliverable, latches, willful breech of warranty of habitability, partial constructive eviction, improper service, incorrect rental amounts) …so she merely wrote ‘General Denial’ and told me to tell my answer orally to the judge.

Later this week I have my first court date. I am trying to find an attorney, which I believe I will need in this case. So, I will need to request an adjournment. However, how do I deal with amending my answer now? I do not want to do it prematurely, in the event that I do find attorney and he/she knows what they are doing.

Any recommendations?


Also, should I wait until I can see about an attorney before asking for a court inspection for violations?
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Postby Sky » Tue Sep 14, 2010 12:19 pm

I was advised to visit the courthouse today to speak with the people at the tenant help desk (not the pro-se attorney), Citywide Task Force on Housing was there. I asked the individual what the procedure is to amend my answer. She told me that I cannot amend the answer, because I submitted it orally and oral answers cannot be amended: she said it is not possible to further amend my answer to include all my defenses and counterclaims. She said the only possibility - and she's not even certain - is an attorney might be able to amend my answer. But she also said I’m out of luck because an amended answer has to go in 4 days prior to a court appearance and my court date is later this week, too soon.

It’s difficult to get accurate info and I’m only becoming more confused.
Are there attorneys on the forum that can clarify this issue?

????
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Postby ronin » Wed Sep 15, 2010 2:36 am

The CWTFHC volunteers are usually non-attorneys and she is telling you what she has been told the rule is. The simple cure is to prepare an amended answer and ask the judge to allow it. Better would have been to attach a written answer like I described above. Those oral answers are atrocious in the hands of the Housing Court's lazy, LL loving clerks.

I think "oral answers can't be amended" (which is facially silly) is a inversion and misunderstanding of "Amended Answers cannot be oral" (which makes perfect sense). And they must be amended all the time if tenants can hire attorneys- otherwise the tenant attorneys would be bound by the lazy clerk answers all the time.

Attorneys are just your representatives licensed to represent you in court. Anything they can do for your case, you can do also. If they can amend your answer, so can you. The difference is experience and knowledge, not rights.
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Postby Sky » Wed Sep 15, 2010 9:38 am

Thanks Ronin.

To be clear, if I appear at my first court date before the judge later this week and request an adjournment to seek legal council and it's granted, afterwards during the adjournment interval, I can then submit my amended answer/counterclaims in writing (ether done by an attorney or by myself) as long as it is served in a timely manner before the adjournment return date?
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Postby TenantNet » Wed Sep 15, 2010 9:44 am

Just a practical word here... whatever rights and procedures a litigant might have - either by statute, court procedure or precedent - matters less than how a judge or court clerk feels on a given day. They operate by flexing power, much of it against unrepresented tenants. If you hang out in the clerk's office for a period of time, you might here the expletives that tenants collectively are called by some of the clerks.

They are less likely to play that game with tenant attorneys, at least those who regularly practice in housing court.
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Postby Sky » Wed Sep 15, 2010 3:31 pm

The replies have been on the order of, ‘I should be able to amend my answer’. Unfortunately that is too is too vague to be of any practical use to me.

My court date is tomorrow morning.

I am as clueless as I was one week ago. HOW do I amend my answer???
What is the procedure?
Up until what date can I do it?

I’m not an attorney and do not know the procedure (this judge will be of no help, in fact, I was before her 6 years ago at trial pro-se: before I began she said she’s giving me only 10 minutes to present my case … to provide testimony and evidence on dozens of NYC recorded violations, serious violations, pics, docs, etc., etc. … she cut me off at the 10 minute mark and said I was done! Then she gave the LL as much time as he needed to present his case and afforded the LL every sort of latitude. She ruled there were no violations in my apt! Full judgement against me. A legal service agency actually voluntarily without my asking, took on my appeal for breech of judicial procedure, but the appeal failed. I have this same judge).

I am spinning in circles here … I need to put rubber to the road and do something. But how? I need the nuts and bolts, the specifics (A,B,C)

Are there any attorneys reading this forum?

1) How do I go about doing either of these proceedurally? What to do in court tomorrow? Note also that I do not want to waive the issue of service, so I think I must do something tomorrow.
2)Most important: if I just wing it and write some quick and dirty amended answer tonight and tomorrow serve it on the LL's attorney when we are called to the judge's bench: if I ask for an adjournment to seek an attorney, can my attorney in turn amend my amended answer? I have a very complex non-payment case, it isn't straight forward, and I really need an attorney to review it as he may want to incorporate a dozen other defenses/counterclaims that I'm ignorant of. Would an atttorney be able to amend my amended answer?


Anybody?
NYC, anybody?
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