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Lease Forbids Counterclaims or Jury Trials?

NYC Housing Court Practice/Procedures

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Lease Forbids Counterclaims or Jury Trials?

Postby Sky » Wed Sep 15, 2010 4:47 pm

A tenant's lease states:

"Jury Trial and Counterclaim
Landlord and tenant agree not to use their right to a Trial by jury in any action or proceeding brought by either, against the other, for any matter concerning this Lease or the apartment. This does not include actions for personal injury or property damage. Tenant gives up any right to bring a counter claim or set -off in any action or proceeding by Landlord against Tenant on any matter directly or indirectly related to this Lease or Apartment. "

-Does this mean the tenant cannot bring counterclaims in a non-payment case?
That seems outrageous?

-In a complex non-payment case, is it advisable to have a jury trial? Does a lease with the above clause preclude it?
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Postby TenantNet » Wed Sep 15, 2010 6:09 pm

I believe both provisions are unenforceable ... although you might want a second opinion on that. A jury trial supposedly would be more difficult for the LL to win with the assumption that a jury would be more sympathetic to a tenant, and the time and effort involved. I believe you would need to make a demand for a jury trial in your answer or in a motion. Again, I would get an opinion from a practitioner in Housing Court.
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Postby ronin » Sun Sep 19, 2010 3:46 am

Jury trial waivers are enforceable in housing cases. And even when the waivers are not there the corrupt clerks and corrupt judges of the Housing Court use tricks to stop the pro se tenants from filing Jury Trial requests. The most common one is refusing to accept the request after the filing of an answer.

In fact, jury trial waivers are just part of contract law, and if you check almost every contract (credit card, cell phone, etc) you will see an "Arbitration" clause which waives your right to not only a jury trial but even a real court with a real judge. So these waivers are the norm in US and NY law right now.

The no counterclaim provisions generally are not enforceable, but they are treated as "no counterclaims on this case" which generally means they can be "severed" if the judge wants to. However, counterclaims that are part of an affirmative defense should not be severed...

PS. However, that being said, in a trial before a jury the Rules of Evidence are in full force and effect. A pro se tenant could find themselves unable to present very much to the jury because they are likely to not know how to respond to the LL attorney's objections. Unless the pro se takes some time to research the Rules of Evidence in New York, a jury trial is suicide because they will be muzzled and the theoretically sympathetic jury will never get to hear the tenants side. The benefit desired will be lost. In addition, there is something called a directed verdict that the judge can do if you fail to say enough to even get it to the jury. Meanwhile, a coherent pro se presentation in front of a neutral judge can be very informal and convincing. (Of course, neutral judges are so rare in the HC that you might have a better chance of spotting Bigfoot on the subway- sigh).
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Postby ronin » Thu Sep 30, 2010 12:38 am

Oh yeah. I forgot to mention one other thing. Only the Respondent (or Defendant) can ask for a jury trial in HC. The reason is that by filing a case in the HC you waive the right to a jury (or something like that... ). That and the fee are the reason they are so rare.
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Postby TenantNet » Thu Sep 30, 2010 12:43 am

I've been told by a lawyer that jury trial waivers are not enforceable.
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Postby ronin » Thu Sep 30, 2010 11:43 am

Well, the statute could have changed. Or a precedent changed. But the current state of the overall law in the entire country is that you can waive the entire court system, jury or not, by contract and force arbitration!

Last I saw the LL friendly courts were more than happy to follow suit with jury trials. But as noted, things could have changed. Also, RPAPL hasn't been extended to allow full arbitration. So I could be wrong. In fact, I would be happy to be wrong on this!! LOL!

But I've seen them enforced in Brooklyn HC. But then again I've caught an HC judge on the record take money from a lawyer in front of her- some could call that a bribe- without any penalty given, and last I checked bribery isn't legal (yet). So maybe your lawyer friend could forward a case or statute to aid our discussion?? (I don't have my Schrerer book handy for a quick browse).
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