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LL DENIES RS

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Re: LL DENIES RS

Postby Cazmia » Thu Jul 24, 2014 5:00 pm

Hi, I know it's been a while but I did want to return with an update. The landlord had not one, but two lawyers going back and forth filing motions the day of the case.

Even the other tenants were in disbelief at how they both were trying to solicit advice from a THIRD resident lawyer, just for little ole ME. They were , in lamens terms, ganging up on me, literally.

The case was adjourned by the mediator who shook her head at the lawyer(s). The landlord himself hasn't shown up for a case in months and hasn't even come by to collect my rent in 2 months. I have purchased my rent in the form of US postal money orders and I am holding onto those.

I FOILed DHCR and they sent me a docketed Administrative Determination from '95 in which the building was inspected and found to have SIX units. The tenant was owed over 28,000 dollars in overpayments.

The bad news is, the case (which was initiated in 1987 and "dertmined in her favor in 1995" was later REVOKED in 1999, because the landlord had countered by providing proof from HPD that the building was 5 units. The tenant was no longer at the apartment in 1999 to answer the appeal from the landlord, so the 5 unit status was granted.

I understand that the tenant forfeited the case for her failure to answer communications. What I fail to understand is how it was stated in the Reconsideration that all previous facts were superceded by the new docketed order.

Despite what proof the landlord provided, how can an inspection by DHCR that determined the building is six units be superceded? Doesn't it then become a matter of fact, despite what outdated records HPD might supply the landlord with?

It's very frustrating, but I've come this far so I will continue to FOIL whatever info I can to prove my case. I still wonder why someone can't just visit the place, open the gate he has this apartment hidden behind with the jaws of life and simply force this man to be honest, record-wise, about this place with EVERY administrative agency.

It just seems like the courts are giving this owner an opportunity to try one thing after another until he hits on something that can get us out, and no one can ever really determine what agency has jurisdiction. I am tired of just defending myself while he is allowed to take "shots in the dark".

I feel as if I need to find a more "offensive" position in this matter.
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Re: LL DENIES RS

Postby innocent1997 » Fri Jul 25, 2014 7:04 am

It is quite difficult to navigate thru housing court without a lawyer representing the tenant. The tenants don't get same respect if no lawyer representing. The landlords' lawyers stay at the court mostly all days, and they know how to expedite things as needed with the court staff. They sometimes can do things a prose tenant cannot do. It could be double standard.

The question is whether you want to stay in the apartment or not. If not, it is easier,

If yes, it maybe worthwhile to hire a good lawyer who is familiar with rent stabilization.
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Re: LL DENIES RS

Postby Cazmia » Mon Sep 15, 2014 5:49 pm

I can't afford a lawyer. However, I have educated myself and feel much stronger for the experience. I have rallied as many tenants as I could, brought us to the DHCR when they wouldn't do it themselves and we are now waiting on docket numbers.

I filed a Cross Motion to dismiss the case for lack of merit and perjury. The clerks at the court were agape, as if I were the first tenant to ever do that. It was submitted the same day as the case (although I had mailed a copy to the owner's lawyer) and we seem to have a good judge who signed off on it immediately..

I intent to help the other tenant do the same thing if another motion is in order. All our complaints are coming in triple, as we are united as a tenant's organization. It pays to have confidence and learn the ways of the system, and respect sometimes naturally follows..
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Re: LL DENIES RS

Postby Cazmia » Thu Sep 18, 2014 5:28 pm

Good afternoon,

It looks as though I have been elected "informal" head of the tenant's association that we comprise here. I have a question of much concern that Google has not been able to answer for me.

One of the tenants will be going to court next week. He tends to be nervous and give answers that do not necessarily support his case when he is asked certain questions. I know this because I have stood beside him in court as a character witness during mediation in the Housing Court Resolution part on both cases the landlord has brought against him.

I have done MUCH (months for hours a day) research and study in the subjects that will be coming up in during this case and have come up with what I believe may be an airtight case for this tenant, including questions to ask the owner during cross examination and plenty of helpful evidence.

I have deduced that the forte of the landlord's lawyer is REAL ESTATE (not Housing and DHCR law) which may have been critical mistake on the part of the landlord. I have quoted DHCR law for instance to the Petitioner's lawyer and he is clueless. They again have pulled a "switcheroo" on us..The former, 2nd and third lawyer they were trying to "triple team" us with have gone into hiding..The latest person they have pitted against me is the man the law firm is named after, the owner of the law firm. I suppose I should take this as an indirect compliment.

After all my ocassions in court and 20 days missed of work I no longer feel much fear. I am mostly disgusted at the situation these tenants and I have been thrust into. I have spent the past year versing myself in housing, property and dhcr law.

But.

I am not a lawyer.

I would like to represent this tenant in court, as we cannot afford a lawyer and I am not sure how well he will fare on his own.

I want him to be present in court, but I will handle all cross examination and presentation of evidence.

I will let the court know that I am the head of the tenant's association and that the purpose of my presence there is to represent him.

This is a Non Payment Petition in Bronx county civil housing court that has been brought without merit.

Will I be allowed to represent him?
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Re: LL DENIES RS

Postby TenantNet » Thu Sep 18, 2014 5:50 pm

No. You are not an attorney and cannot represent people. You can be present for emotional support. You can prep the tenant beforehand. You can write any paper documents that the tenant would sign. But you cannot act as an attorney in the courtroom itself. The judge will not allow it and the LL's attorneys will have a field day with you.
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Re: LL DENIES RS

Postby Cazmia » Sun Sep 21, 2014 2:32 pm

Thank you,

Good to know. It seems unfair, but our court system has developed it's reasons for what it permits and doesn't permit over a hundred years and I'm sure there is a good reason for me not being permitted to do this.

I hate seeing this tenant put under stress because he does take heart meds. I have prepared his folders with evidence, clearly marked with what each has inside of it, so he can present proof as he needs it with a simple glance.

I will be there as a witness and say as much as I can, as the tenants have given me intimate knowledge of each of their cases by submitting all their paperwork and info to me. In the past, I have doubted my ability to be efficent and organized as an individual.

There is, however, no room for me to doubt my abilities at this time.

The Bar examination can't possibly be more nerve-wracking than this... :/
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Re: LL DENIES RS

Postby Cazmia » Sun Sep 28, 2014 2:38 pm

Update: In reviewing the evidence that we have presented, the judge advised the opposing counsel that there were too many open issues on his end and he was not prepared for a trial.

The oppsosing counsel advised that ending the case would cause his client to "have his head on a stick". However, his client would not come forward for a trial.

This tenant's case is done for the time being.

I am continuing to defend my own case, and continuing to learn and become comfortable with the court system, housing and DOB, HPD and DHCR law...

Another set of tenants who signed a stipulation has been inspired to attempt to restore their case to the calendar. I have submitted their paperwork to DHCR and said I stand behind them all the way, and that we are stronger as an oragnization. I adivse them to keep an eye on their mailboxes, and to pursue the overcharge issue despite how things turn out with their unit.

I do not expect that our issues are close to over, but I hope this case and others that follow (if they must) will inspire other tenants to fight for the rights they are due.

Confidence and knowledge are key, and I don't doubt God has played a huge part. =)
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Re: LL DENIES RS

Postby Cazmia » Sun Nov 02, 2014 4:33 pm

On both cases, the judge had removed the case from calendar. However, the lawyer is trying to be crafty and I wonder if you might be able to provide some legal advice..

He has issued us notices of discontinuance on both cases. Anyone else might be happy, but I am LIVID about this, because he has also given us 10 day notices to vacate by the end of our lease next month, saying he will not renew.

That's not legal in Rent Stabilization, but my real question is, how can he be allowed to discontue and start a NEW case just because he doesn't like the outcome of the current case?? I think he's hoping to get a new judge and a new chance at a more favorable outcome.

I don't think it's that easy. I read somewhere that he needs permission from the court or me, the Respondent, to send a discontinue notice. Especially since I had filed an answer in the form of a motion to dismiss and was ready for trial..What is the name of the action I can file to try and deny him this discontinuation?

Thanks again!
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Re: LL DENIES RS

Postby TenantNet » Sun Nov 02, 2014 4:51 pm

I can't provide legal advice because I am not a lawyer. Not being cheesy, just a fact. I can offer occasional opinions and observations, but that cannot substitute for someone who has a complete grasp of the case (I can't go back and re-read every post to get back up to speed).

Who has "issued" you notices of discontinuences? That doew not make sense. Did the judge discontinue the case? With prejudice? Is this a resolution part or a trial part?

Or did the LL discontinue the case? If you have counterclaims, the LL cannot discontinue your counterclaims. (but the judge can dismiss). So I'm confused what happened.

Did the LL issue a new Notice of Termination? If the old case is gone, the it has to start over with new serving requirements, i.e., a new case.

I gather with DHCR's revoking the case, and noting coming from the court, in the LL's eyes, you are not RS. So you would have to put in the same defenses again when a new case is brought.

You raise a good point. It's called judge shopping. But what he's done might be legal. I don't know. You might try to have the new case "referred" to the old judge. I've seen that happen - you might need to make a motion for that to happen.
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Re: LL DENIES RS

Postby TenantNet » Sun Nov 02, 2014 6:02 pm

So I asked a source about this. A lot of information is unknown (to us). Was there a tenant motion pending? If so, what is the relief sought? Was the cases just marked off calendar, or actually discontinued, or dismissed (three different things)?

Our source tells us, thye LL can't unilaterally discontinue once an answer has been filed. See CPLR 3217[b] at http://law.justia.com/codes/new-york/20 ... e-32/r3217

Also see the attached file. The LL must make a notice on motion. No oral motion or the LL attorney issuing a notice of discontinuance should be allowed. Although Judges allow oral motions all the time, the tenant should insist their counterclaims go forward.

If case gets discontinued, the tenant should ask the case get referred to the same judge.
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Re: LL DENIES RS

Postby Cazmia » Tue Nov 04, 2014 6:21 pm

Thank you,

Yes, my answer was a cross motion to dismiss the case with prejudice. The judge had marked it off calendar, because she told Petitioner he did NOT have a defense to my evidence and it was only as an alternative to dismissal because he'd begged her not to dismiss.

I had a frustrating day that ended well. I went straight to the courthouse and argued with a legal aid who told me that he could discontinue if he wanted to DESPITE me having answered and WITHOUT a court order. I cited law to him straight from the court website and also explained to him about "abuse of process" (something I'd found on Google that I felt applied). With such an accusation you have to provide motivation (him trying to open a new case because this one wasn't going his way) and proof of that motivation (the letter the landlord had sent me saying he would start an action against me next month)

The legal aid seemed confused at that point and starting offering advice that didn't even apply to my case. 6 months ago, I would not have understood how misdirected the legal aid was...He told me to just let him have his way and try my luck in the next case, said maybe I'd get the same judge.

I am appalled that this man is here to HELP people.

Funny, I did ask him if I could request the same judge and he said it was an impossiblity. "We have to protect fairness for BOTH parties," he said. "You can't just CHOOSE your judge!"

Wow.

At this point I was PO-ed and said I wanted to try and contest the motion ANYWAY. He told me I didn't have a chance, and I responded that I wanted to try and I needed him to tell me how to do that.

The aid told me an Order to Show cause to restore the case to calendar would be the only opposite to his discontinuance, but said I wasn't likely to get one of those. I asked him what room to go to and walked away while he was still shaking his head at me.

Upstairs at the Order to Show Cause room, people were better, more informed. They smelled harrassment and helped prepare my forms. I was confused as the form didn't seem to have a thing on it that applied to MY situation..but I found a blank space where I could print "an alternative reason" for my request to restore the case to the calendar. I wrote small and stated legal premise, motivation and proof --like a formula for a written essay. When the clerk asked me if I wanted to include anything with the order, I handed him the landlord's Notice of Discontuance and his threatening letter. They told me to go to my very familiar courtroom and wait for my judge to make a choice...

After that, I decided I was ready to accept defeat if I had to, because at least I had the satisfaction of knowing that I'd made our judge aware of the underhanded way he was trying to circumvent the system and dance around her..

30 minutes later the court officer called me over. "You're good to go," He said, "..Go serve him..."

I checked and the case is back on calendar. Later this month, he will have to stand before the judge and explain to her why he has enough evidence to bring another action against me, but cannot finish the case he started..

:lol:

So far, still lawyer free and hanging in there, pro se.
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Re: LL DENIES RS

Postby Cazmia » Tue Nov 04, 2014 6:31 pm

P.S. On the contrary Tenant Net, for someone who can't completely grasp my situation, you've been an INCREDIBLE help. One of my most powerful defenses came from your citing of Rashid Vs. Cancel.

It turns out DHCR never really revoked stablilization. I read into it, and they simply didn't give the tenant her overcharge because she had admitted on another ocassion that the building wasn't 5 units as of her base date..

But on my base date it was. =)

Which was how they were able to inspect and find 6 units, yet still not give the other tenant her overcharge. It's amazing how that makes sense to me now. Base dates are important and, depending on them, you can have 2 apartments in the same bulding in which one is stabilized and the other isn't.

Since we all moved in 15 years after the 6 th unit was discovered, and since the owner has admitted in an answer to my cross motion that the 6th unit was still there when he bought the building (and still is there, by the way) that makes us stabilized according to NYSHCR Policy.
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Re: LL DENIES RS

Postby Cazmia » Tue Nov 04, 2014 6:34 pm

I meant to say that the tenant had admitted the building WAS 5 units as of her base date. But on my base date it was already 6 units. Der.. =)
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Re: LL DENIES RS

Postby TenantNet » Tue Nov 04, 2014 7:03 pm

Sounds like you're getting better results. From our perspective it is difficult to follow all the details of complex cases.

One thing you mentioned, you said the motion was your answer. I don't think that's possible. There are answer and there are motions. I don't think one thing can be both.

Motions are where you ask the court to do something specific, like dismiss a case.

An answer is where you lay out your defense and any counterclaims.
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Re: LL DENIES RS

Postby Cazmia » Wed Nov 05, 2014 6:58 pm

Thanks for clarifying. It feels as if I learn something new every day.

At first I answered, then he filed a motion against me, then (he) filed another motion to take back what he'd said in the first motion. At that point, I filed the cross motion.

I keep every motion so I can illustrate the (5 or 6) instances in which he's contradicted himself and simply thought he could take it back, saying he'd "made a mistake".

It's funny how all his "mistakes" are signed and notarized by both him and his lawyers.
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