LL DENIES RS

[TenantNet]

The RTP-8 is a RENEWAL lease. The initial lease RS tenants sign are whatever lease the LL gives you. They are usually leases approved by the Real Estate Board (REBNY) or RSA (LL rent stab assoc). After that is when the RTP-8 is required. Of course all leases must have the DHCR informational rider attached.

[Cazmia]

The last lease the tenant had was a renewal lease, and it was not on an RTP-8 form and he never received any riders at any point in his tenancy of 5 years. I believe the tenant is scared that, in signing a renewal lease that wasn't an RTP-8, that he somehow forfeited his right to rent stabilization.

But we feel the tenant did do the right thing in opening a case with DHCR once he was told what his rights and responsibilities actually were.

It is my belief that the Rent Stabilization Laws protect this tenant despite his lack of knowledge in signing a lease that isn't stabilized, because it is the law that protects him, not the lease which is a formality that actually doesn't need to exist, except to ensure the landlord's right to his rent increases.

Do you think the fact that the tenant signed a renewal lease that wasn't proper could grant this owner his Ejectment? DHCR opening an Administrative Determination Proceeding last week.

It seems that seeing something like that should cause a Supreme Court judge to halt the
case based on that alone..

[Cazmia]

The opposing lawyer is NOW trying to say he's using an Ejectment action, because the heart patient's apt is not legal. So, now that it looks like we've proved six units, this has basically given him a license to win ejectments against any of the tenants because the certificate of occupancy says 5 units, rendering the building illegal to rent??

How is that fair? I also can't believe that the judge has put the burden on us, the Defendant, to prove the unit IS legal...!

We showed him the letter saying that DHCR has opened an Administrative Determination, and all the judge said was, "well, that could take years to decide..This man is asking me to kick you out of your home right now!"

I'm at a loss and quite despondent about this...and I can't suggest how this man with no income could find someone to represent him AND file an answet in only 2 short weeks.

[TenantNet]

Nothing is ever fair.

In housing Court you have "summary proceedings" - in essence a lightweight version of full court cases.

In Supreme Court you can get "actions" which allow all sorts of things, for example, full discovery. In Housing Court any discover is not automatic, it's at the discretion of the judge and a request must be made.

I'm not following the rest of your post.

If DHCR has opened a case on the same subject matter, the courts usually defer to DHCR.

Have you looked at Legal Aid or Legal Services?

BTW, in general here I can only respond to your last post, I can't go back and refresh myself with all four pages of your case history.

[Cazmia]

Thank you, I thought the same-that with an Administrative Determination open, how could this judge possibly allow this Order to Show Cause to eject him to go through?

Is there a certain sort of motion he could file in order to ask the courts to defer this to DHCR?

[TenantNet]

Get this guy some legal help.

[Cazmia]

We went to the room the judge sent us to for legal help. They said they do not offer representation or legal advice, then gave us a pamphlet full of legal aid numbers.

We called all of those numbers and left messages which were not returned. One gentleman from the Bar said we could get a consulation for $150 a sitting, but the tenant is without income since his heart attack and open heart surgery.

The judge demanded we have representation, not a consultation and a sworn answer within 2 weeks.

[TenantNet]

Don't go to the Bar Association. It used to be $25 but they often do not know LL/T law or Housing Court.

Go to Legal Aid or Legal Services. Call again. Find out when they have intake hours. Don't give up after one phone call.

There are also other groups such as MFY - depends on the area of town you are in.

[Cylon452]

Hi Cazmia

Any updates on this ? - i been following this thread closely and learned from this thread. I wish the best for you and your follow neighbors. You're fighting the good fight. Hopefully you can find a lawyer with a good heart and ear.

[Cazmia]

Sorry it's been so long.  I've actually ejoyed a rather long vacation from court, but I did want to post an update for those who are following this case. 

What I've learned, above all, is that a tenant who wants to keep their home must be brave, stand their ground and absorb as much knowledge as possible.  An agent at the DHCR sat with me and educated me so much as to what to say on court documents.  Yes, some tenants crumbled to pressure and were sorry they signed away their rights and left, but I had them file rent overcharge complaints regarding the owner's failure to file with DHCR way before this ocurred, so they still have an interest in the case.  Afterall, the law could require the landlord to FIND them and pay them treble damages. I am still in touch with one tenant who left and keeping him and his wife updated..

  You WILL get negativity from everywhere-the court help desk, the advice attorneys, even the mediator that sits before the judge and naturally the (enemy's) attorney will make it seem as if he could have you for breakfast if he wanted..but know that the only decisions that affect you will come from a judge.  The judges always urge that a trial must happen if you can't make up in the resolution part, but I have yet to go to trial after 2 years in court.  Put together a good case as best you can, speak sincerely not emotionally..be about the facts and you'll get to watch the opponent twist in the wind and kill his case with his emotions when he can't get what he wants...Hold your chin up and always be ready for trial.  The judge will even give you a trial date,  but in the case of another agency like DHCR being involved, you will turn up ready for trial only to hear the judge tell your landlord that the case can either be taken off calendar or ended until they make a decision.  A DHCR senior attorney said very few judges will take jurisdiction over an agency. 

A DHCR rep also told me to make sure you state in your answer that you do NOT want to waive your right to rent stabilization.

  If a judge does the almost unheard of and makes a decision and it is not in your favor, that statement about not wanting to waive your rights gives you a good reason to appeal your case to an Appellate Court.  You want to also put down that the decision of the court should be without prejudice to the DHCR ruling, basically telling the judge that you are waiting on a decision from outside the case which you intend to uphold and any decision should not affect those rights. The tenant who was brought to Supreme Court who had the judge who demanded he get a lawyer enlisted the Aid of the Legal Aid Society. All the other numbers on the help sheet the court gives you (and we called them ALL) were total bull and only represent you AFTER you already get an eviction notice. We wasted so much time with them and the government should cut off funding to these cold, useless entities that waste your time when time is most precious. Legal Aid was actually NOT located in a hole in the wall or the basement of some apartment building. They actually have lawyers there, and they returned the tenant's call and took a keen interest in his case. It gave us hope should we need to appeal..However, the case has been on hold for 3 months now, so we cannot make any testimony as to their services until something is decided either way..They did say he could bring in all his paperwork and they wanted to research the case on their own online, which is so much more than any other legal aid service even touched upon. I am impressed and hope if we need them they'll be consistently as enthusiastic..

Yes, the other tenant and I are still here and still standing our ground.  I used Google to teach myself to draw up an Affidavit in Opposition for the heart patient and we mentioned in it that we did not want to waive our right to stabilization.  A smart move was that that I rallied all the tenants to complain about the owner's lack of maintenance of the building and public areas early on to DHCR on RA84 and RA81 forms.  The most important form we filled out, however, was the Rent Overcharge Complaint, which essentially put the owner's payments on hold and gave us a strong defense in housing court. The other tenant and I had also filed for harrassment relating to the repeated nonpayment actions the owner had against us while we WERE paid up to date..The rent overcharge complaints gave the judges in housing court a reason to suspend the cases, which placed his rent in limbo, and when the landlord sued for his money after almost a year, a second judge refused to grant him a penny pending DHCR's decision on the rent regulatory status.  He had turned paying tenants into nonpaying tenants. 

At my harrassment conference the owner, who often sent his pricey lawyers in his place turned up by himself (probably because no lawyer wanted any part of that appointment for less than a fortune).  It was an intimate meeting and I was all about the facts when I spoke. The owner did not defend himself well and resorted to name- calling.  I agreed to pay my rent and in return he had to agree to cease all court actions until DHCR made a decision.  Mind you, everyone was looking at me because, for the first time in this terrible situation, I was in control.  If I decided I didn't want to pay the money, a judge had expressed she would probably take his case off calendar anyway..but I chose to, because the attorney told me triple damages could only be awarded to a tenant whose payments were current. It was the right thing to do anyway.

It's still all out war.  I'll send a letter to DHCR and the landlord always rebuts with new evidence, like last minute affidavits from seedy witnesses he obviously paid off.  He denies our tenants association exists.  On every letter and evidence packet I send to DHCR, I end it to the effect of: "we the tenants having united are seeking aid from the proper agency.."  I'm feeling that the DHCR is more convinced by my letters, since they have sent an inspector on more than one ocassion who looked for the sixth unit in exactly the place I described in my letters!  The last inspector said, "Yeah it's six alright..We're gonna' get him.."

The owner of the building next door even signed an affidavit LYING and said he had never seen tenants residing in the sixth apartment, but now they're checking on HIS building too and, get this,  he ALSO has a six unit that is down as a five.  By helping our landlord, he implicated himself and may face penalties for his own residence.
I use websites like the Bronx County Clerk,  HPD Online and ACRIS and I feel like a private investigator uncovering conspiracies.  It is truly amazing what you can find out..like my landlord and the neighboring landlord who lied for him share a common lawyer even though they just met 2 years ago.

Meanwhile, DHCR suggested I write the TPU about my landlord.  I prefer to take the defense and strike only as I need to.  DHCR seems to have found the owner guilty of rent overcharge thus far, because they are trying to assess treble damages.  The owner answered in writing with what he believes is evidence that this is a five unit building.  Again, I defended with logic and fact as opposed to my emotions. I rebutted, arguing that trying to argue rent regulatory status on a rent overcharge complaint is not addressing the issue of willful overcharge and that the owner's evidence did not meet any of the criteria described in DHCR fact sheets that would excude him from treble damages. 

I had used this method on the last nonpayment case against me. A previous judge had allowed my payments to be on hold for 8 months, the owner AND his lawyer got steaming mad and his lawyer yelled, "THIS ISN'T EVEN A SIX UNIT BUILDING!" Then he turned to the landlord and asked, "IT ISN'T ....IS IT!?!?"
LoL. I calmly stated, "I'm not going to keep having this argument because it is not the issue at hand today.  The DHCR is currently determining the rent regulatory status of the premises.."  Lawyers on other cases were looking at me as if I were one of them.  The mediator looked at him and said, "She's absolutely right.." The landlord demanded to see the judge and said I hadn't paid in months and what of his money..The judge said, "I can't give you that now.  She's filed a rent overcharge and there is a question of possession.." Only weeks before the same judge had said she didn't know how much of a case I had and she'd sheduled us for trial.  I was respectful, asked my judge if they needed copies of anything and thanked the judge for hearing our case.  I decided I'd let the chips fall where they may and continue to answer DHCR and make my appearances..but that was months ago..
Now, it's a waiting game.  I've heard DHCR can take a long time to decide, but the judge asked them to expedite the case hence the inspector and my overcharge complaint being processed before any of the other tenants.  I thank TenantNet Forum for giving me direction when I had nothing but a blank piece of paper, little knowledge and lots of fear.  I thank DHCR and one man in particular who has been our ANGEL.  I thank everyone who stood with us and supported us like my loved ones and fellow tenants. Google and Bing are incredible too. I thank God, especially, for making me the hardass I didn't know I could be.  This continues to be an incredible, "growing experience". 
We've gone from victimized tenants who were holding onto our homes by a thread to an association of tenants who may obtain treble damages for the violation of their rights as rent stabilized tenants.  If you asked me 2 years ago if I were capable of formulating an 89 page letter and evidence packet or creating an affidavit in opposition, I'd have looked at you like you were crazy..but when you learn what your rights are, it's just about finding the right way to say what you need to say...Keep wishing us luck and I will keep you updated!

[Cazmia]

After almost a year the Supreme Court judge has set a hearing for 2 weeks from now. His letter states the matter will be put down soley to determine whether or not the building is 6 units and subject to stabilization, because that is the "heart of the matter".

The comments in his letter said that both parties provided information from DHCR whichwas conflicting. He also said both parties should present their evidence, and any DHCR updates in "admissible form" as it was not presented that way the first time...
We are again attempting to get the Legal Aid Society behind us, who was beginning to work with us a year ago when the case was put on hold. They initially said they wanted to follow the case, and to come back when it resumed. However, it is now 10 months later, and they are acting as if they do not remember us or the lawyer we were working with. We went in person gave them some paperwork, but they have not called us back and we were hoping they would be there on our trial date..

We gave the judge a thick, bound booklet 10 months ago, with the Affidavit in Opposition and about 12 detailed, indexed exhibits, so we are not sure what he needs to be in admissible form. Any advice on that and whether or not we should bring witnesses? Not sure if a hearing is less formal than a trial and if that will be necessary..

As for DHCR updates, we have a printout that says the determination is under "final review". If Legal Aid doesn't come through, we might find ourselves pro se as usual. Is it as simple as bringing the printout to court in a little manilla folder or does a Supreme Court judge expect us to restate the whole case we presented to him again in another form? We put so much work into that indexed booklet, and it was signed and served the last time. Not sure what he is looking for..

[TenantNet]

I'm not going to re-read four pages here. And I can't remember posts from 2 weeks ago.

Can you give up a 1-2 paragraph synopsis of all that has happend until now?

For a SC hearing, is this an Article 78 - who brought it? If it is an A78, is DHCR a party here (they should be) and which side are they defending?

For Legal Aid, sometime you need to make a stink. Keep calling or sit in their office until someone pays attention.

I can't say for certain what admissable means, but some government documents may need to be "certified." You can ask DHCR FOIL office for certified copies of documents. Let them know you have a court date and they are supposed to expedite this. (you might have to pay them for copies).

Judges have wide latitude. Some judges can be very helpful and understand your situation, but others are nightmares. I would bring witnesses, but don't be surprised if the judge won't listen. You really need a lawyer if you don't know how this stuff works.

On your last paragraph, I'm confused. Is this issue under active processing with DHCR and also, at the same time before a judge? (or is the judge reviewing a prior order?) If you feel good about a DHCR order, then you can ask DHCR for an expedited decision due to the ongoing case.

Again, if this is an A78, why isn't DHCR a party?

Or did the LL bring the case which is not an appeal to a lower DHCR decision. Which is it?

[Cazmia]

No, not an Article 78 case. An eviction proceeding that LL brought against this tenant in Supreme Court because he could not get anywhere in Housing Court. You see, 2 prior eviction cases were taken off calendar by the Housing Court since 2013, so this case is the LL's ongoing attempt to evict. It is an Ejectment Action.

The reason prior cases were taken off calendar for this tenant (and others) is because he is operating a six unit building which is down on public record as a 5 unit. It says 5 units at HPD, his deed says 5 units and his Cert of Occupancy (from 1926) says 5 units. The tenants know this to be a six unit and the issue has been presented to DHCR, who is in the process of an Administrative Determination (AD Proceeding). The AD is under "final review" status.

LL then filed RJI to speed up the case and assign it to a judge. The Supreme Court judge let the case lie for about 10 months after the RJI and has now called it forth again for a hearing, but the DHCR has not completed the final review as of yet.

I'm not sure how the judge wants to proceed, because this case is for a single tenant and any decisions affect the rent regulatory status of the ENTIRE building..

This tenant, as well as myself (I am another tenant and I head the tenant's association), have been fighting eviction by this landlord for 2 1/2 years in court. Owner thinks he can get us out before a determination is made and has been trying relentlessly (8 cases in total). We have brought harassment cases against him as well as rent overcharge complaints and building maintenance complaints, but none can be processed until the final determination.

We have a letter from the DHCR attorney which advised the landlord that further legal action would be fruitless until a determination is made. He is not to "commence" any further actions. However, this case was already commenced when that letter was written.

We will bring this documentation to court, but were just wondering if it needs to be presented in certain way and, if the judge wants updates, do we have to serve the attorneys for the LL before the court date since it is "new evidence"?

Thanks for the advise about Legal Aid. We will be persistent with them. We really need their help. The tenant's rent has been on hold for 18 months and Housing Court judge have not pressed him to present any money due to the overcharge complaint and the complexity of the whole situation...

[TenantNet]

You say "LL then filed RJI to speed up the case" -- so does this mean the LL's case is one of Mandamus seeking to enforce DHCR to make a quick decision, or is it - as you say an eject ment case (which would not be an A78).

Have you made a motion to wait for the DHCR determination? That seems to be the logical thing to do.

Can you send us a scan of the DHCR letter by attaching it to a private mail on this forum? Do not attach it to a public post on the forum.

We can't say how a judge will conduct a matter in the courtroom as it varies from judge to judge. It might be informal, and it might not be.

[Cazmia]

Precisely. The owner is attempting to speed up an Ejectment proceeding.

No motion has been filed. However, the tenant answered and then filed an Affidavit in Opposition. In the affidavit, he expressed that an administrative determination was being processed and asked that the case be deferred to the agency handling the matter.

It seems if there is going to be a hearing, this might mean the judge has chosen not to defer the matter...? Unless, the judge's order for a hearing on the issue is his way of getting it out of his hands after a year...

I don't see a lot of sense in a hearing to determine what another agency is also trying to determine. Also, this is one tenant's case the judge is presiding over. The determination that we are stabilized, however, would affect all the tenants.

Would a judge ask us to bring in the latest updates from DHCR, which he could access himself online, just to tell both parties in person that he is deferring the case? Couldn't he have just said that via written court order?

I realize we're worredly trying to read a judge's mind, which in itself is pointless...Still no active participation from Legal Aid or MFY Legal.. (sigh)