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Landlord trying to evict me from my RS apt.

NYC Housing Court Practice/Procedures

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Landlord trying to evict me from my RS apt.

Postby SC50 » Tue Oct 02, 2012 2:08 pm

Hi, I stumbled upon this forum as I was looking for information on how to approach my situation. I fell behind on rent payments as I fell behind on student loan payments, and I had to help pay for a family member's funeral. My landlord sent me a 5-day demand (with the 5th day being August 24th) , and subsequently sent me a notice of petition. I received the petition on Sept.17th

Just from my preliminary research, I noticed that they did not properly serve me. The landlord's attorney sent it via regular USPS, and the actual copy that the server was supposed to affix to my door was slipped under my door after I already answered the petition. Furthermore, the dates on the service affadavit were prior to the 24th, that was set forth in the demand letter. I know for a fact that they did not attempt to serve me as I was home from worth on the day that they claimed they tried to serve me.

My apartment has significant damages and issues (water damage from the apartment above which is my former super's, a malfunctioning toilet, vermin and insect issues, and a broken shower handle that only provides extremely cold water or extremely hot water). I have brought these issues up many times with both my current super and his predecessor. My current super's predecessor began work on the water damage to my ceiling and never finished the job. Lamentably, I didn't file a complain with 311.

Since this time, I have discussed the issue with my super on countless occasions. With regard to the toilet, he told me he needs to bring an outside specialist and that never came to fruition. Even my mother complained to him on her visit to my apt (She lives in Florida).

After I received the petition, on the advice from a relative that is an attorney,I answered that I was not properly served and put a counterclaim in and listed my damages. I showed up to court on the first hearing date, which fell on Yom Kippur. I brought pictures of the damages as well as all documents that I received. The landlord's attorney did not show up and they adjourned my case until Nov.13. Since this time, I have had a couple conversations with my landlord, and attempted to figure out an agreement to no avail. He was rather dismissive.

I sent him a month's rent in order to catch up, and planned on sending subsequent payments to reduce or eliminate the arrears. He sent the payment back and said that he will not accept any partial payments.

What recourse do I have in this situation? I honestly cannot afford to be evicted. I have been a tenant in the apartment for just under 5 years now, and for the first three years, my landlord declined to raise my rent because I paid on time every month. I have had a few hiccups, but I always corrected all arrears, and just want to get an agreement, that I will honor. It appears to me that he will be averse to any stipulation when we get to court, so that he can get a higher-paying tenant in the apartment

Any advice is greatly appreciated.
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Joined: Tue Oct 02, 2012 1:44 pm

Postby ronin » Mon Oct 08, 2012 8:20 pm

Firstly, you need to go down to the Housing Court and speak to the pro se attorneys that are there to assist non-lawyers. Take copious notes. Get the pro se answer form from the clerk.

Take those notes to your relative who is an attorney and have them help you fill out the answer form. Get the relative to come with you to court and assist you with the judge.

All of the above is preliminary. Just having a licensed attorney with you changes the game considerably.

Your jurisdictional defenses are important, make sure the clerks don't remove them (lazy clerks like to check 1 defense if you tell them 4- but you need every defense listed or you lose them). The failure of service will get you a traverse hearing at which you can argue that the service was improper. From what you've said it sounds rock solid. Requesting time to find an attorney will buy you some time.

If you win the traverse the case is dismissed and the LL is back at square one. If you lose the traverse it is not uncommon for the judge to proceed directly to trial immediately, or within a few days.

Getting the case dismissed buys you more time to get the rent together. But it is only a few weeks extra in a non-payment.

Your defense of violations will get you an inspector (and also buys a little time). If the repairs are not done the inspector will tell the court and that may put your NP case on hold.

Do more research on the forum for the precise order of the proceedings.

Your attorney relative will be a big help just in translating the legalese for you. And more so if he or she can represent you.

Good luck!
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Joined: Sat Mar 16, 2002 2:01 am

Postby SC50 » Mon Oct 08, 2012 10:28 pm

Thank you very much for reply.

My cousin has been very helpful, but I think he may be overwhelmed with work, which won't allow him to help. I will certainly ask, but I am not optimistic. He recommended that I use the service defense, and that I use the repairs as a counterclaim and not a defense. What is the likelihood of success with the service defense? My cousin told me that generally judges detest when tenant employ these tactics

Since the initial hearing date, I reported by landlord via 311 to HPD for the problems in the apartment.

I should be able to have the amount stated in the original petition, but I will require some time to assemble the additional funds. I get vested equity from my employer but that takes place on Dec 15th. Essentially, I need an additional month to get the funds that I will owe in excess of the original amount. How likely is the court to grant me this time? I really need to stay in my apartment, and I am willing to use any tactic that will buy me the necessary time

Thank you very much.
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Joined: Tue Oct 02, 2012 1:44 pm

Postby ronin » Thu Oct 11, 2012 1:00 am

Whether they detest a tenant complaining about lack of service or not is really irrelevant. So judges do "detest" such defenses because they are ignorant of the law and very pro landlord.

However, ignoring lack of service is a surefire way for a judge to get overturned. Improper service means that they lack jurisdiction.

I think what your cousin may mean is that some judges are annoyed because a housing case dismissed on bad service is likely to be refiled shortly after dismissal. But even a few months dismissal matter a great deal in a summary proceeding (as you know).

So go for it.
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