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NON-PAYMENT PROCEDURE QUESTION

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

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NON-PAYMENT PROCEDURE QUESTION

Postby chill tenant » Thu Jun 20, 2019 12:16 am

Got a 3 day notice placed under my door. Was not affixed to the door. Copy was NOT mailed to me.

Two weeks later found a non-payment petition laying on the floor next to my door. Was not affixed to the door. Copy was NOT mailed to me.

Petition says I have 5 days to appear in court and answer.

My questions:
1) Will this constitute sewer service?
2) If I do not answer this in 5 or even 10 days, will the lawyer for LL set a court date by appearing before the clerk, as I would have done had I answered, or do I lose by default without that court date, which is usually 7 days after I appear ?

Thanks
chill tenant
 
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby TenantNet » Thu Jun 20, 2019 4:28 am

Sounds like sewer service to me. 3-day notices require service in the same manner as a Petition/Notice of Petition. On one hand the lack of mailing should alone be sufficient to call it defective, that the notice was slipped under the door as opposed to be taped to the door - that may be OK. Still it would be worth raising when the time comes. As you report, they pulled the same defective service with the Petition.

The 3-day notice (and petition) must also be sent by certified mail. So go to Housing Court about 2-3 days after the Petition is filed and look at the case file in the clerk's office. See if there is an affidavit of service, where it will say what the process server will allege is the date/time of conspicuous service. and it should also have the certified number from the USPS. With that number, you can track the mail online.

Copy the affidavits, then scrutinize the wording of what they say carefully. Do they allege how they got access to the building? Do they describe the door accurately? Is the description sufficiently particular? An experienced attorney can tear apart a server's allegations in a Traverse Hearing.

Who is the process server? Please let us know by Private Mail. We're tracking a few and that would be helpful.

The problem is that you're in a he said/she said situation.

The law changed last week, including requirements on service.

New York State Professional Process Servers Association
BREAKING NEWS!!!

The State of New York has recently passed several changed provisions of the RPAPL. The new law went into effect Monday, June 17, 2019. For process serving purposes, here are the following changes:

* Rent demands now require 14 days notice, no longer 3.

* Notice of Petition/Petition – The time period is now minimum 10 days maximum 17 days, no longer minimum 5 days, maximum 12 days.

* The Notice to Terminate month to month tenancy in the city of NY – the length of time is now predicated by the length of tenancy. One year is 30 days, over one year but less than two years is 60 days. Over two years is now 90 days.


But according to your post, the events likely occurred prior to the change in the law. I do not know if the new provisions are retroactive. Chances they are not.

Have you received a postcard from the court? In the past I've gone past 5 days, but you really don't want to push the envelope too far on that. Exercise caution. While you may be able to fix the problem if you default, I would not let it become a problem. So put in an Answer as soon as you can, even if late.

Also you can track your case on Ecourt/Civil Court.
https://iapps.courts.state.ny.us/webcivil/ecourtsMain
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby chill tenant » Thu Jun 20, 2019 9:28 am

Thank you.

That was very informative and might be helpful, but it doesn't answer my question.
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby chill tenant » Tue Jul 02, 2019 1:22 am

I went to court to answer the petition after I got a mailer from the court.'
I checked the file as you suggested and saw two affidavits of conspicuous service on file.
One for the 3 day notice and one for the petition.

The both state that they tried to serve me on two separate days, and on the second day they affixed the petition and 3 day notice to my door (which did not happen).

They also state that the following day they sent me the petition and 3 day notice by regular and certified mail (neither happened.)

Interestingly neither affidavit of service contains the USPS certified mail number, as you suggested it should have - what does this mean? how do I attack this point now?

I cannot afford to hire a lawyer, so have to fight this myself. So I visited the court library trying to learn all I can about it and read something to the effect that if I were to bring any other defenses I would waive the defense of improper service.
Of course I have a defense of Warranty of Habitability among other things.
Does this mean on my return date I should not talk about it and only speak on the issue of service?

If I were to ask for an adjournment can I then bring the issue of improper service on the adjourned date or they would say I had to do it on my initial date?

Thank you
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby TenantNet » Tue Jul 02, 2019 3:20 am

Those affidavits are important. In your answer, you should have listed 'bad service' among your defenses. I don't know how this works - and you should find out (and let us know) - the court should conduct a Traverse, a sort of mini-hearing where the process server comes in and testifies about how/when service was made. If the court finds bad service, they would have to dismiss the case for lack of jurisdiction. Of course the LL can start over, but then the new laws will mostly have taken effect. Or, in some cases the LL might give up. I wouldn't count on that though.

The city has recently changed its web site (and all the URLs), but I would go to nyc.gov and search for "process server". Poke around and also Google "NYC process server" to see what is out there. Here's one page, but I don't think it's the only one:
https://www1.nyc.gov/site/dca/businesse ... rvers.page

Also https://www.nycourts.gov/courthelp/Goin ... vice.shtml
https://www.serve-now.com/resources/pro ... s/new-york

and more.

On the affidavits, understand that in some cases it is less important what actually happened, but what the affidavit alleges to have happened. What is on that piece of paper forms the basis for the court to determine proper service. Look for what is not there.

Were the papers sent also by BOTH regular and certified mail, and to all John or Jane Does listed on the caption?

Also, how soon after the alleged service (and mailings) were the affidavits filed? That is important as well.

"...something to the effect that if I were to bring any other defenses I would waive the defense of improper service."

Where did you see that? I don't know if that is true or not. But be cautious on that. For the other questions, I would ask the Pro Se attorney (1st floor in Manhattan) and Court Attorney in each court room. They can give you technical information on how things work.
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby chill tenant » Mon Aug 05, 2019 3:10 am

So I went to court on the return date and the LL attorney didn't was to hear anything about defective service.

And the judges clerk appeared uninterested in hearing about it as well asking me if I have defenses other than that.

She also asked me if I am ready to proceed with my defenses.

I said I am ready to proceed with the defense of improper service.

She adjourned it for a month for settlement or trial.

Now my question is if this adjournment is credited to me, the LL attorney or the court?

Can I get it adjourned again on the next court date?

What would be good reasons to ask for the adjournment?

Thank you.
chill tenant
 
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby TenantNet » Mon Aug 05, 2019 7:27 am

Did you put in an answer? Important.

If it's in your written answer that should be sufficient. But of course, you should have other defenses. If the case isn't dismissed on bad service or other jurisdictional grounds, then you have to deal with the merits.

Most cases are adjourned the first time on. You would be in the resolution part, where parties often negotiated, or you can submit a motion on a number of grounds. But at some point the matter will be sent to a trial part.

As to who the adjournment is credited on, does the stipulation of adjournment, or judges order say?

Yes, it can be adjourned again, and again and again. But you have to have a good reason. Reasons? You're looking for a lawyer? Or you're submitting a Motion to Dismiss and the LL lawyer will want time to answer the motion.

But rather than adjournments, think about your defenses (and counter-claims, if any).
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby chill tenant » Mon Aug 05, 2019 3:56 pm

Yes I put in an answer, and on the return date which was8 days after my answer the case was adjourned.

There was no stipulation of adjournment, no judges order. The judge's clerk met with me and LL attorney for a quick conference where she asked me if I have other defenses other than
improper service and I said yes, but that I first wanted to fight on those grounds.

Realizing that we cannot enter into an agreement with LL attorney she adjourned the case saying its adjourned for settlement or trial.
And on a little orange paper wrote adjourned to 8/7/2019

Under the circumstances, is this adjournment credited to me and can the LL claim it is credited to me if I ask for another adjourment next time to speak to an attorney.

Can't they said you had a whole month to speak to an attorney? If so, what would be my response to that?

The reason I ask this is because on the Petition it states that during my second request for an adjournment I will have to deposit the money that I allegedly owe with the court.

The way I see it is the first adjourment was not by my request, am I correct or it doesn't matter for some other reason that I am not aware?

Thank you
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby TenantNet » Mon Aug 05, 2019 4:21 pm

Usually the clerks will give you some piece of paper with the adjourn date, which more or less substitutes as an order. If a stip between the two parties, it would often say who requested the adjournment.

From the new law, one sources says, "RPAPL § 745 requirement that tenant pay use & occupancy or post the rent when asking for more than one adjournment exceeding 30 days is severely curtailed. Requires landlord to make a motion. Two adjournments do not include the first one to seek counsel."

and REBNY says, " RPAPL 745: Where you used to be able to seek use and occupancy in court as of the date the (notice of petition and petition) NPP was served, after Tenant adjournment of more than 30 days and get dismissal of defenses and counterclaims if not paid, now it is 60 days, a Tenant request to seek counsel does not count, the order to pay is only as of the date of the order not back to when NPP served and it must now be on written notice and if not paid pursuant to the court order, remedy is not dismissal of defenses and counterclaims, but a trial subject to Court’s scheduling. No Court order if Tenant can make a colorable claim of overcharge or hazardous or immediately hazardous conditions."

But if the case was filed before the new laws took effect, then the old law might still apply (people are still arguing about things like that). The petition probably cites the old law.

Your answer should list all the other grounds; if not, then move to amend the answer.

Fighting on service would require a Traverse Hearing, and I don't know if that comes first or what. I have heard that in many cases, even with improper service, it's a he said/she said situation and tenants often lose. OTOH, if the affidavits do not mention certified mail tracking numbers, you might have something.

From what you describe, the first adjournment should not be counted against you IMHO.
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby chill tenant » Mon Aug 05, 2019 9:57 pm

Here is a potential complication, or maybe not.

My Answer In Person Sheet which is part of the file that the judge's clerk had and the LL attorney had when we met for a brief conference only had General Denial checked on it.

A week earlier when I came to court to answer the petition, I specifically told the clerk all my defenses, yet she printed Answer In Person with just General Denial checked and told me that it preserves all my defenses.

Now when I was leaving the courtroom on my return date after the case was adjourned, it didn't sit well with me that my Answer In Person paper does not have any of my other 6 defenses checked. So to make sure I went to the free lawyer they had in the court.
He said that I should go back to where I initially put in the answer and either file a motion to amend the answer since we already had the first court date or file an order to show cause.

When I went to the room where you put in the answer the supervisor told me to file an order to show cause to which I responded that I shouldn't be doing that since when I first came there a week earlier, specifically said to the window clerk all my defenses and she still printed the Answer In Person paper with only General Denial checked and told me that it preserves all my defenses.

So he asked me for all my defenses and printed an Amended Answer In Person paper that now has all my defenses checked. He told me that If I wanted to I can make a copy and mail to the LL attorney, but that he already put it into the file.

When I asked him if the judge would accept it now that we already had the first court date, he said: "if you have any problem blame us"

Now will the judge's clerk notice that there is an Amended Answer in Person when we meet for the 2nd time and will the LL attorney realize it somehow?

Will it be allowed?

Do I tell them myself that after the conference we had on our first date, that I went downstairs and amended the answer, even though my main objective at the next court date is to have it adjourned?

Being that the answer was amended without the judges permission (via an order to show cause or motion), will the judge or judge's clerk still allow it to stand given that the supervisor himself did it for me?

What should I do?

Thanks
chill tenant
 
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby TenantNet » Mon Aug 05, 2019 10:26 pm

I would follow the free lawyers advice. File a motion or OSC to amend the answer. When this is over you should also make a complaint that the clerks are not doing their job properly and making legal decisions (like, what is preserved).

Yes, it has to be served on the LL atty. And if mailed, it might need to be mailed by someone not a party to the case, and you might need an affidavit of service signed by the server.

And I would check later to make sure it's still in the file. Actually I think the supervisor might have acted incorrectly by just printing it out without a judge's order.

If the judge is a stickler, blaming it on the clerk might not work. It's about jurisdiction, not who is to blame. You are right to be concerned.

You should really get legal advice on this, even if only from the Pro Se attorney.
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby chill tenant » Mon Aug 05, 2019 11:18 pm

So now, despite having an Amended Answer that has all the defenses I want checked, I have to file an Order To Show Cause to Amend the Answer?

What am I amending - the Amended Answer or the Original Answer?
And what are my reasons for amending?

The supervisor will be really pissed off when he sees this, wont he?

What do I tell them at the court date - should I alert them to the amended answer if its in the file? If so, do I do this before I ask for an adjournment or after?
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Re: NON-PAYMENT PROCEDURE QUESTION

Postby TenantNet » Tue Aug 06, 2019 5:47 am

I didn't say you had to do that. I said get some legal advice. If (and I mean if) the clerk acted improperly, then you might run the risk of having the amended answer tossed out. I don't know the answer to this. But if I were in this pickle, I would call a lawyer. and get some advice.
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