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Affidavit of service got my description wrong?

NYC Housing Court Practice/Procedures

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Affidavit of service got my description wrong?

Postby oshma » Mon Mar 28, 2011 5:30 pm

Hello,

I got a postcard from Housing Court saying that my LL had commenced a non-payment proceeding. When I got to the clerk's office, I discovered that the Affidavit of Service stated that I was served personally and that the papers were mailed. The personal service part got my skin color, hair color and weight MAJORLY wrong. Does this invalidate the entire AoS?

Also, there is reference to a demand for rent that was supposedly served as well, but neither that nor an AoS for it was in the papers the clerk gave me. Is that right?

Thanks.
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Postby TenantNet » Mon Mar 28, 2011 5:42 pm

You need to request a Traverse Hearing where the LL will put the Process Server on the stand to testify. Search this forum, this site and the web for "Traverse Hearing" and Housing Court.

also

http://www.nycourts.gov/courts/nyc/hous ... ring.shtml
and
http://www.nycourts.gov/courts/nyc/hous ... tion.shtml

It might throw this case out, but the LL will start a new case. In many situations it's better to deal with the merits of the case unless you need to buy some time. I would get some legal advice regarding a Traverse.

Yes, there should have been a 3-day Rent Demand.
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Postby ronin » Mon Apr 04, 2011 12:16 pm

It might throw this case out, but the LL will start a new case. In many situations it's better to deal with the merits of the case unless you need to buy some time.


I strongly disagree with that point. It is always important to argue personal jurisdiction. It is an issue that you can lose if you don't fight for it.

If a judge ignores the fact that the process server lied and got your skin color and entire description wrong, you can then go fight the case. If you lose on the merits and appeal, that jurisdiction issue could be your reset button.

On appeal, if you win on the jurisdiction issue, the case is dismissed and the judge's rulings on the merits are as if they never happened! (even if the appeal court would have upheld them)

And after appeal, or even after a straight traverse dismissal, everything is reset- the notice has to be reserved, the petition, etc. That is many months which slows down a process which goes way to fast against tenants. That is time to raise the rent money, research other defenses, etc.

The summary process is too fast as it is. When a LL cheats on the service, always make him go back to square one. It is never in the tenant's interest to speed an eviction proceeding!
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