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Can LL demand rent before it is due? (petition & notice)

NYC Housing Court Practice/Procedures

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Can LL demand rent before it is due? (petition & notice)

Postby brookerlyne » Thu Nov 17, 2011 11:46 pm

My rent is due the 15th of each mth (my LL forgets/ignores this). On Oct 2, he called to say that Sept & Oct rent had not been paid. I told him Sept had been sent (he didnt cash check) and Oct was not due yet... On Oct 11 I was served with a notice of petition and petition, with Oct rent being claimed as unpaid (I sent in a chk dated for the correct due date- the 15th). I have trial next week... Ques: Because LL demanded, and served me with notice of rent that is not due yet is that grounds for dismissal? (He had time to amend the petition but didn't).
Thanks!
The above isnt legal advice - just an opinion.
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Postby TenantNet » Fri Nov 18, 2011 12:15 am

Did he plead in his papers that he served you with a 3-day rent demand? And did he actually serve you with a rent demand?

If not you can make a motion to dismiss on those grounds. You can also make a motion to dismiss (or motion for summary judgment) because the due date had not yet occurred. In other words, even if you had not paid rent, it was not yet due. Even if all the facts are in the LLs favor, he still can't win because the rent was not yet due.

Is the 15th date written in your lease?

Can you get proof from the bank for the Sept. payment?

How did you get to a trial so fast? Usually cases are in the resolution part for a while.
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Postby brookerlyne » Fri Nov 18, 2011 9:52 am

Thanks so much for your fast answer!!

Did he plead in his papers that he served you with a 3-day rent demand? And did he actually serve you with a rent demand?
My lease does not specify written demand only. He plead that he served me orally. He made a phone call (referenced above), which I recorded, but the demand was improper. He did not state the (total or individual) amount of rent due, how many days I had to pay or quit (ie expiration) or that he was taking me to crt etc.

If not, you can make a motion to dismiss on those grounds.

Resolution Judge granted me a Traverse Hearing, which is what is scheduled for next week. If I lose, it's my understanding that we may go right into trial that same day/time...

You can also make a motion to dismiss (or motion for summary judgment) because the due date had not yet occurred. In other words, even if you had not paid rent, it was not yet due. Even if all the facts are in the LLs favor, he still can't win because the rent was not yet due.
Ahh, this is where I'm most lacking knowledge about the law regarding due dates etc. I could not find anything in the archives and the Lawyer I occasionally consult with said in 20 yrs of practice has never come across this, but assumes it would make the petition defective. Based on the info you provided, I plan to make an oral motion to dismiss right before the start of trial. Any other tips would be helpful... I'm not sure what legal speak/basis I should use.

Can you get proof from the bank for the Sept. payment? Yep. I have proof of all payments- Sept, Oct and even Nov which I paid 3 days ago.
TENANT TIP: Beyond having your bank send a chk on your behalf (free bill pay function) in order to create a paper trail. If your LL is playing games, and deliberately not cashing your chks, get his bank info & acct # from your previous canceled chks, and deposit your payment (via chk) directly into said acct... How can a LL in a non-payment case object to actually being paid rent?? Smile

How did you get to a trial so fast? Usually cases are in the resolution part for a while.
Yes, but luckily I've had great Crt. Attys (resolution part), that see right through the LL's atty and have assisted expediting the case. 1st appearance (10/17), I showed Crt Atty and LL Atty proof of all payments (no rent owed). Upon verifying my payments were true, LL Atty submitted a motion to amend his petition to ADD rent going back 16 mths - from a case I'd already won LOL!! Needless to say this really p*ssed off Crt Atty, and he told Judge his take on things. Judge allowed amendment (telling me that I would just show old case and payments etc to trial) BUT, against Atty objections, sent us to Traverse Trial that SAME day, as she knew Atty's process server was not present and case would be dismissed (Crt Atty explained that Judge didnt have power to dismiss case based on those facts, so this is best tactic) ... Unfortunately, by end of day we were not called to trial, so there went my instant dismissal, and case was adjourned for next week... I know I could just go to trial and get the whole thing taken care of, but I'd rather get it thrown out on a technicality and have them try to refile. I feel it gives me more leverage in the end.

UPDATE 11/24/11: Case dismissed without prejudice, as Process Server showed up AFTER court commenced. Judge called case at 9:45am. LL Atty said Process Server was on his way and should arrive at 10am. Judge said Atty should have been better prepared and Court will not wait as traverse hearing was scheduled at 9:30am. Dismissed!
Last edited by brookerlyne on Sat Dec 17, 2011 7:04 am, edited 2 times in total.
The above isnt legal advice - just an opinion.
brookerlyne
 
Posts: 35
Joined: Mon Jun 20, 2011 7:48 am

Postby TenantNet » Fri Nov 18, 2011 11:24 am

How did you get to a trial so fast? Usually cases are in the resolution part for a while.
Yes, but luckily I've had great Crt. Attys (resolution part), that see right through the LL's atty and have assisted expediting the case.


That's not always a good idea. I can't say for certain as each case is different, but there are time when holding a case in the Resolution Part might be to the tenant's benefit.

LL Atty, said he had to check with client and if what I show is legit they will drop case - fair enough.


Just curious, can you send us - by Private Mail - the name of the LL attorney. This sounds oddly familiar. Don't put it on the forum; use the PM mail button. Also wondering what Borough and the name of the Resolution Part judge.

Once it's over you can always make a complaint to the NYC Bar Assn for frivolous conduct.

You said you consult with an attorney. Is that a tenant attorney and is he/she representing you?
Last edited by TenantNet on Fri Nov 18, 2011 2:15 pm, edited 1 time in total.
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Postby brookerlyne » Fri Nov 18, 2011 12:43 pm

That's not always a good idea. I can't say for certain as each case is different, but there are time when holding a case in the Resolution Part might be to the tenant's benefit.

I agree with that strategy for the majority of cases. Holding in Resolution is usually a benefit, as it gives a Tenant time to pay and gather defenses/arguments... But if the Tenant is current on their rent, most times it's actually better to go to trial quickly, as more time case drags, more rent accrues. If tenant misses a payment or LL doesnt cash chks etc they lose what should have been an easy win. Holding in Resolution also prevents a Tenant from moving fwd with their own strategies (ie small claims crt, DHCR, HP, Bar complaint etc). Of course, they can do all these things while in crt, but it does look suspicious in the eyes of the crt.
Just curious, can you send us - by Private Mail - the name of the LL attorney. This sounds oddly familiar. Don't put it on the forum; use the PM mail button. Also wondering what Borough and the name of the Resolution Part judge.
Makes me more suspicious as to who this LL atty is. Once it's over you can always make a complaint to the NYC Bar Assn for frivolous conduct.
PM sent. Complaint to Bar is on the agenda as soon as case is resolved.

You said you consult with an attorney. Is that a tenant attorney and is he/she representing you?
Extremely knowledgeable and highly competent HC Atty, that usually reps LL, as that is who mainly comes to him - but he has no preference, and has successfully repped a couple Tenant friends of mine. He really empowers his clients with knowledge. Everything I know I've learned from him or you guys here at .net .
My LL has tried to sue me 5 times in the last 6 years (I'm rent stab), and my Atty has wiped the floor with them every time lol! Not to detract from Tenant Atty's, but 1 advantage to someone who normally reps LL's is that they know every LL Atty trick in the book and are able to predict the next move... He is not repping me this time, as he/we didn't feel feel it necessary considering my knowledge and the weakness of LL case, tho he consulted with me on how to proceed (at no charge).
The above isnt legal advice - just an opinion.
brookerlyne
 
Posts: 35
Joined: Mon Jun 20, 2011 7:48 am


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