Posted by JJ on July 15, 2001 at 01:22:29:
In Reply to: Re: HELP! Where do we go from here?? UPDATE posted by Dayann on July 14, 2001 at 17:21:25:
: Our kid is safe and we have inspectors reports to vouch for our claim that the LL refuses to make repairs and the eviction is retaliatory, and that non-payment of rent is solely due to LL's failure to comply with housing codes.
Did you say you're withholding rent? Did you start that after LL gave you the 30-day notice? (don't answer online...)
IF, big IF, your LL does not live in the same house as your family, you can and should, IMHO, use 'retaliatory eviction'. RPL Section 223-b here: http://www.tenant.net/Other_Laws/RPL/rpl07.txt
My officemate just did this, assert a defense of retaliatory eviction. She's a tenant leader in her building. Her eviction case is now a major production... (it was a trumped-up charge of nuisance, a holdover case).
Please read RPL 223-b very carefully; you may need a lawyer to help win with this defense.
First: you must use it as an affirmative defense to an eviction proceeding by your LL. Second: it is not a defense to the 'failure to pay rent', it is a defense to the LL's attempt to evict you. Translation: you will still have to pay the rent in full and should offer it to LL and maybe even deposit it in court. If you answer the Petition (first comes the rent demand, then they start the lawsuit with the Petition: read up on this in the Housing Court section on TN: http://www.tenant.net/Court/Hcourt/current.html) orally in person, make sure the clerk writes down the words: "retaliatory eviction" (s/he might try to tell you that you can't do that in a non-payment answer, but s/he's wrong.) If you lose that fight, remember that you have an absolute right to amend (change, add to) your Answer within ten days from the day it is filed or answered in person. Read the summary of the decision I mentioned here: http://www.tenant.net/Court/Hcourt/current.html
the case is named: 601 West 160 Realty Corp. v. Henry
read the whole decision here: http://www6.law.com/ny/decisions/doi070201.shtml
It's the first decision. click on the name 601 West... (you will need to sign up, free.)
: A friend of mine said that the LL can be smacked with an injunction for issuing me a 30 day notice immediately after I made complaint to the City. JJ, is this what you meant by $$$ damages?
Injunction? dunno 'bout that....
Because your LL issued the 30-day notice within 6 months of filing a good faith complaint to HPD or DoH, RPL 223-b imposes a PRESUMPTION that your landlord is trying to evict you primarily vecause of those complaints. 'In English': he's guilty unless and until he can prove he's not. You don't have to prove his motive in trying to evict you: RPL 223-b says it is retaliation. He has the burden of proving it was for some other reason. This works for a holdover, i.e., if you're still there after 30 dys and he sues for that reason.
If he sues for non-payment instead, the burden of proving retaliation goes back on you shoulders: from RPL 223-b:
" But the presumption shall not apply in an action or
proceeding based on the violation by the tenant of the terms
and conditions of the lease or rental agreement, including
nonpayment of the agreed-upon rent."
What good is this defense? Read RPL 223-b again! If the court agrees that the eviction proceeding is retaliatory, the judge MUST declare you the winner, the LL MUST keep you as a tenant (but only for 1 year), and "3. A landlord shall be subject to a civil action for damages and other appropriate relief, including injunctive and other equitable remedies, as may be determined by a court of
competent jurisdiction in any case in which the landlord has
violated the provisions of this section."
OK, so now things get fuzzy for me, too. My officemate used retaliatory eviction as both an affirmative defense AND a counterclaim. A counterclaim is part of your Answer to LL's lawsuit and that's where you ask for money damages.
Injunctive relief? making him keep you as a tenant.
Equitible relief? dunno.
:What exactly is an "injunction" :
the court ordering someone to NOT do something or to do something other than pay money or leave their home. see above. see NOLO for better explanation.
:and what is "rent gouging"?
a criminal offense: someone, including your LL, the broker, the super, demanding more than $250 above any regulated rent (stabilized, controlled, section-8, various other city/state/federal programs) to give or renew a lease or a tenancy in New York state. (yes, Virginia, all rent overcharges of more than $250 per month are also violations of our Penal Code).
IMHO, you've also got a defense and counterclaim of violation of the Warranty of Habitability which gets you a rent abatement.
Now that you're familiar with some terms, try using the Search box in Housing Court Decisions to read summaries, then use you new free subscription to read the whole decision on NYLJ, just change the date in the DOI part of the URL, not all decisions are published online. Note: you might have to change the SHTML to HTML. Note, only decisions since Feb 2001 are available (ANYBODY?: has anyone figured out how to get to the older NYLJ decisions from before law.com took over in Feb?)
You can always get them at the library: look that up online, if yours doesn't carry NYLJ, goto the Mid-Manhattan one on Fifth at 40th (not the lions at 42nd), 4th floor. Or you local law school, if you can get into the library! Another thing: that branch and regional NYPL's carry McKinney's Consolidate Laws. Volumes and volumes of black-covered books containing not only the laws of our state but explanations by leading authorities, excerpts from notable cases, some cross-references. A real education..... NY CITY laws are not in McK's.
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