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Posted by TenantNet on November 24, 1998 at 05:53:17:

In Reply to: Re: DHCR Overcharge Case posted by DK on November 18, 1998 at 13:13:51:

: It sounds fishy to me, too, but I bet there's a lot more to it than your note describes. If you have the decisions, why can't the file be recreated? It seems to me that Supreme Court can sort this all out and you will eventually get your judgment.

: By the way, if you are going to sue DHCR for negligence, don't forget that you have to file a notice of claim within 90 days of the date you learned that they lost the file.

I had a case where DHCR "conveniently" lost the files. This happens more
than you would like to think, either by negligence or design. In my case
I was diligent with my submissions and resubmitted everything. DHCR accepted
my submissions as sufficient to recreate the case file and used it as
"the return" when submitted to Supreme Court. The "return" is the complete
file on the case from DHCR that is submitted to the court. This is necessary
as an Article 78 proceeding is a challenge to DHCR's "rationality" of its
decision, not a challenge on the merits of the case. If you are lucky
enough to get a decent DHCR attorney (I hear there are one or two they
haven't yet purged), put a little pressure on them to recreate the file. If
the LL isn't too swift, they won't object and the will put in their own
papers into the recreation. But make sure the LL does not put in new
papers or new arguments. That's why it's always good to examine the case
file via FOIL at various stages of the case.

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Comments:
: : It sounds fishy to me, too, but I bet there's a lot more to it than your note describes. If you have the decisions, why can't the file be recreated? It seems to me that Supreme Court can sort this all out and you will eventually get your judgment.

: : By the way, if you are going to sue DHCR for negligence, don't forget that you have to file a notice of claim within 90 days of the date you learned that they lost the file.

: I had a case where DHCR "conveniently" lost the files. This happens more
: than you would like to think, either by negligence or design. In my case
: I was diligent with my submissions and resubmitted everything. DHCR accepted
: my submissions as sufficient to recreate the case file and used it as
: "the return" when submitted to Supreme Court. The "return" is the complete
: file on the case from DHCR that is submitted to the court. This is necessary
: as an Article 78 proceeding is a challenge to DHCR's "rationality" of its
: decision, not a challenge on the merits of the case. If you are lucky
: enough to get a decent DHCR attorney (I hear there are one or two they
: haven't yet purged), put a little pressure on them to recreate the file. If
: the LL isn't too swift, they won't object and the will put in their own
: papers into the recreation. But make sure the LL does not put in new 
: papers or new arguments. That's why it's always good to examine the case
: file via FOIL at various stages of the case.


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