Posted by Dayann on July 16, 2001 at 00:35:13:
In Reply to: Re: HELP! Where?? Retaliatory Eviction Defense posted by JJ on July 15, 2001 at 01:22:29:
: Did you say you're withholding rent? Did you start that after LL gave you the 30-day notice? (don't answer online...)
JJ I WOULD LIKE TO GIVE YOU THE ANSWER TO THIS QUESTION BUT I CAN'T E MAIL YOU VIA THE LINK THAT CAME UP. PLEASE E MAIL ME, GIVE ME YOUR E MAIL ADDRESS AND I'LL SEND YOU AN ANSWER.
: RETALIATORY EVICTION:
: 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
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.
YES, WE UNDERSTAND WE CAN'T BRING THIS UP UNLESS LL ACTUALLY SERVES THE PETITION/NOTICE OF PETITION.
Second: it is not a defense to the 'failure to pay rent', it is a defense to the LL's attempt to evict you.
UNDERSTOOD. BUT WE CAN USE REPAIRS AS A DEFENSE TO WITHHOLD RENT, AND GIVE THE RENT TO THE COURT, YES? ALSO, WE HAVE PROOF THAT VIOLATIONS WERE CITED AND THAT BECAUSE LL STILL WOULD NOT COMPLY, A CITY CONTRACTOR HAD TO BE CALLED IN TO CORRECT THE VIOLATION.
Translation: you will still have to pay the rent in full and should offer it to LL and maybe even deposit it in court.
OK UNDERSTOOD. NEXT QUESTION: IF WE OFFER RENT IN COURT TO LL AND HE ACCEPTS IT IN FRONT OF THE JUDGE, DOES HE HAVE TO START ALL OVER, I READ SOMEWHERE THAT IF IT IS A MONTH TO MONTH AND LL ACCEPTS RENT HE IS ALSO ACCEPTING OUR TENANCY AND CAN'T TERMINATE.
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.
MAYBE IT WOULD BE BETTER TO ANSWER IN WRITING? EVEN THOUGH THIS CAN BE TRICKY?
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."
I THINK WE CAN PROVE OUR RENT HAS ALWAYS BEEN PAID AND THAT WE ONLY STOPPED PAYING IT DUE TO LL'S REFUSAL TO MAKE REPAIRS. SHOULD WE SUE FOR REPAIRS AND DEPOSIT RENT IN COURT TO BACK OURSELVES UP? IF WE DEPOSIT RENT IN COURT AND COURT FINDS WE ARE ENTITLED TO AN ABATEMENT, DO WE GET BACK THE MONEY WE DEPOSITED WITH THE COURT?
: 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."
SO BASICALLY HE CAN'T COME BACK TO ASK FOR A DISPOSSESS OR FILE ANOTHER PETITION/NOTICE OF PETITION FOR 1 YEAR IF WE CAN PROVE IT WAS RETALIATORY, EVEN THOUGH WE ARE MONTH TO MONTHERS?
: 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.
CAN YOU ASK YOUR OFFICEMATE TO E MAIL ME AND EXPLAIN TO ME HOW THIS WAS DONE? WE WANT TO MAKE A COUNTERCLAIM FOR DAMAGES.
: Injunctive relief? making him keep you as a tenant.
: Equitible relief? dunno.
THIS IS DEFINITELY NOT EQUITABLE RELIEF, HE STILL GETS TO DRAIN US FOR MONEY AND WE STILL GET TO BE MISERABLE LIVING WITH THE JERK. BUT AT LEAST, IF WE WIN ON THIS DEFENSE WE CAN POSSIBLY GET A YEAR TO FIND A PLACE IN AN APARTMENT BUILDING, WITH A LEASE, SO THAT WE DON'T HAVE TO GO THROUGH THIS AGAIN WITH ANOTHER LL.
: :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).
THANK YOU. THIS DOESN'T APPLY TO US BUT IT IS GOOD TO KNOW SINCE WE ARE LOOKING FOR A NEW PLACE. HOW DO WE FIND OUT THE VALUE OF THE APT. SO WE CAN DETERMINE IF THE PERSON RENTING IS ASKING FOR TOO MUCH BEFORE WE SIGN ON THE DOTTED LINE?
: IMHO, you've also got a defense and counterclaim of violation of the Warranty of Habitability which gets you a rent abatement.
IN OTHER WORDS, YOU'RE SAYING THAT BECAUSE WE PAID RENT AND LL FAILED TO KEEP PREMISES IN GOOD REPAIR, ETC. (AS EVIDENCED BY THE VIOLATIONS HE GOT FROM THE CITY, WHICH WE HAVE COPIES OF), HE IS GUILTY OF A BREACH OF CONTRACT AND WE ARE ENTITLED TO ALL OR PART OF OUR MONEY BACK? IS THAT WHAT YOU MEAN? DO WE HAVE TO FILE A COUNTERCLAIM FOR THIS OR DO WE JUST ASK THE JUDGE FOR IT WHEN WE SHOW UP?
: 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.
THANK YOU, I WILL LOOK EVERYTHING UP ASAP.
RE: LAW LIBRARIES. PRIOR TO HAVING MY KID, I WAS A LEGAL SECY AND AM STILL IN A GOOD RELATIONSHIP WITH MY BOSS, SO I COULD PROBABLY GET PERMISSION TO COME IN AFTER HOURS AND USE THE FIRM'S LIBRARY. IF THAT DOESN'T WORK, I HAVE A FRIEND WHO IS AT COLUMBIA LAW WHO MAY BE ABLE TO GET ME INTO THEIR LIBRARY AS A VISITOR. NOT THAT I WOULD HAVE ANY CLUE AS TO HOW TO SEARCH FOR STUFF IN A LAW LIBRARY, BUT ONCE I FIND IT, I KNOW HOW TO CITE CASES IN A WRITTEN ARGUMENT FROM TYPING ALL THOSE DAMNED MEMOS OF LAW FOR 7 YEARS.
FOR ANYONE WHO'S FOLLOWING THIS, YOU CAN GET ACCESS TO SOME UNIVERSITY'S LIBRARIES ON LINE BUT YOU HAVE TO PUT A FEE ON YOUR CREDIT CARD. AND CITY OR STATE COLLEGES AND UNIVERSITIES USUALLY LET THE PUBLIC INTO THEIR LIBRARIES FOR FREE, (FOR EXAMPLE, CUNY LAW) BECAUSE THEY ARE FUNDED BY THE PUBLIC THEY CAN'T BAR YOU FROM COMING IN TO READ. HOWEVER, THEY CAN KEEP YOU FROM TAKING BOOKS OUT AND USUALLY LAW BOOKS ARE CONSIDERED REFERENCE MATERIALS SO BE SURE YOU HAVE LOTS OF CHANGE FOR THE COPY MACHINES OR AT LEAST A NICE BIG PAD AND PLENTY OF PENCILS, SHARPENER, AND PENS.
NOLO HAS A BOOK THAT HELPS NON LAWYERS MANUEVRE (SP?) THEIR WAY THROUGH LAW LIBRARIES. I REMEMBER SEEING IT AT BARNES AND NOBLE. I WILL CHECK IT OUT. THANK GOD FOR NOLO. THE PEOPLE OF A DEMOCRACY SHOULD NOT BE ALIENATED FROM THE LAWS THAT PROTECT THEM. JUSTICE SHOULD NOT BELONG TO THE RICH PEOPLE WHO CAN AFFORD LAWYERS. NOLO IS WONDERFUL IN ITS ATTEMPT TO KEEP THE POWER IN THE HANDS OF THE COMMON MAN.
WILL KEEP YOU POSTED, THANKS AGAIN JJ.
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