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Questions about Pre-Answer Motions

NYC Housing Court Practice/Procedures

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Questions about Pre-Answer Motions

Postby Longtimer » Tue Dec 05, 2017 2:47 am

Hello all,
I've been looking online for the answer to a few questions, but not yet found them. I'll continue looking, but if anyone would care to share their knowledge or direct me to other online sources, I'd be grateful.

All questions pertain to a Rent-Stabilized apartment in Manhattan - Non-Payment case.

  • In order to file a Pre-Answer Motion to Dismiss (CPLR 3211), what are the possible grounds upon which to base that motion?

  • Would requesting an adjournment be considered a Pre-Answer Motion that needs to be filed? Or is one able request it simply by asking the clerk? Or must one request an adjournment from the judge in the courtroom?

  • When asking for an adjournment, what is the longest amount of time that can be requested ?

  • I read somewhere in a post on this forum that one should be "careful" with asking for adjournments because they can "count against you," and that it's better if the Landlord requests an adjournment. Why would asking to adjourn be seen as something negative only if the Tenant requests it?

That's all for now. Thanks!
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Re: Questions about Pre-Answer Motions

Postby TenantNet » Tue Dec 05, 2017 3:24 am

I'll answer now on Q2-4...

Most cases are adjourned the first time on. According to Goldberg Scudieri (one of our advertisers and tenant attorneys):

The law now requires that the court shall direct upon an application by the landlord that the tenant deposit into court all rents which accrue from the date the Petition and Notice of Petition are served upon the tenant in any of the following events:

1. after two (2) adjournments as the request of the tenant, or
2. upon the thirtieth (30th) day after the first (1st) appearance of the parties in the court less any days that the proceedings was adjourned at the request of the landlord, whichever occurs sooner.

Exception: if the tenant establishes at a hearing, that he has properly interposed one of the following defenses:

- the landlord is not proper party;
- actual or constructive eviction; or
- lack of jurisdiction.


That's why it's always best to let the LL's attorney make the actual request to adjourn. In my experience this is not a problem unless things get out of hand and there are many adjournments.

Also, in December, the courts will do almost anything to put cases over to the new year. I can't say for certain, but in my experience, if you have a court date for tomorrow, you might get a new date for late January or even February.
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Re: Questions about Pre-Answer Motions

Postby TenantNet » Tue Dec 05, 2017 4:12 am

On the first Q, the better thing to ask is why do you want to do this? Just to get more time? Are you withholding rent for repairs? Other reasons?

The answer to your question is in CPLR 3211(a). There are eleven grounds to choose from.

If you lose that motion, then according to CPLR 3211(f), you will have ten days to put in an answer. That's in the first department (I've heard the 2nd Dept - BK and Queens - is different).

If you file a pre-answer MTD on paper, it has to be server properly, with an Affidavit of Service filed in the court. The procedures can get complicated, so unless you know what you're doing, I'd get a lawyer. Then chances are the LL lawyer will want to put in opposition papers. So you can buy some time by putting in a pre-answer Motion, but I'd want to have good grounds rather than just a desire to put things off until later.
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