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NONPAYMENT AFTER NON PRIMARY

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

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NONPAYMENT AFTER NON PRIMARY

Postby Cazmia1 » Tue Apr 11, 2023 4:22 pm

My landlord had a nonprimary petition against me, saying I did not live in my apartment. He lost his case. It was dismissed without prejudice, because he waited 2 years to bring his case and the judge said his golub notice was stale. In his court papers, he claims he did NOT cash my rental payments and tried to return some of them. Now, he is bringing a nonpayment case against me. I read one of the defenses to a nonpayment petition is that the landlord refused to take my rent. Being that I have him in writing saying he tried to refuse it, is he still entitled to that money?
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Re: NONPAYMENT AFTER NON PRIMARY

Postby TenantNet » Tue Apr 11, 2023 5:05 pm

The viability of non-primary cases often depend on when a Golub Notice is served. There is a window period where the notice -- essentially a notice that the LL refuses to renew one's RS tenancy claiming that it is not the tenant's primary residence -- may be served.

But a non-payment is a different animal, claiming that you owe rent. You're talking about "tender and refusal" where a LL refuses the rent. That can be a defense in a non-pay. Did your experience agree with what the LL said in the non-primary case? Did he actually return the checks? Or was he just saying that?

If he did send them back, that would support the argument. Some LLs will return checks claiming there is an ongoing holdover case (non-primary is a form of holdover). If they accept the money, that could be seen a reinstating the tenancy. In such cases, what I usually see is that the LL will send back an uncashed check along with a note/letter explaining why.

While tender/refusal can be a defense, I don't know if it's an absolute.

As a side matter, always earmark your checks, i.e., in the memo field designate what month to which the payment should be applied. Otherwise the LL will apply it to whatever month(s) they wish ... even going back years. From now until the end of time, always earmark checks, make copies and send via Certificate of mailing.

I won a case where the LL was seeking around $10,000 because the checks were earmarked.(actually the LL discontinued the matter as they knew they would lose, and there were legitimate reasons why the rent had been withheld). LLs can only collect rent going back six years, the limit of the statute of limitations. If not earmarked, the LL could claim your check was applied to rent owed from more than six years ago, and then sue for more recent rent. Always earmark.
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