TenantNet Forum

Where tenants can seek help and help others



Opposing LL's Motion to Amend in Nonpay

NYC Housing Court Practice/Procedures

Moderator: TenantNet

Opposing LL's Motion to Amend in Nonpay

Postby Clorox » Sat Feb 06, 2016 2:15 am

Let's say a tenant has the funds to satisfy the Petition, but some time has passed since filing and the landlord wants to move to amend the Petition to include rent allegedly owed through the present day. Do courts normally grant these motions as a matter of course if the landlord just produces a ledger and proves the additional demand was made? Are there any grounds on which to oppose such a motion?

If it's an RS tenancy, and the tenant has funds to get current, but is withholding for an abatement, and has counterclaims does it make sense to just consent to the motion to have an abatement hearing/trial ASAP?
I am not a lawyer and nothing I post is legal advice. Consult with a tenant attorney if you have legal questions.
Clorox
 
Posts: 7
Joined: Sat Jan 02, 2016 8:41 pm

Re: Opposing LL's Motion to Amend in Nonpay

Postby TenantNet » Sat Feb 06, 2016 7:19 am

There are specifics on how much time one has to amend a petition (or answer) as-of-right in either CPLR or RPAPL. But housing court is housing court and few judges follow that all the time. They are more likely to pay attention when one is repped by a good attorney. Pro Se tenants always seem to get shafted by HC judges. Of course petitions may be amended by motion.

In any case, a LL's attorney asking to amend a petition to include the rent owed since the commencement of the proceedings is - in my experience - usually granted. However the tenant must make sure that the rent specified in the amended petition matches - by the dollar and month - the actual rent that would be owed.

Just providing a ledger is not sufficient (except for lazy judges). First, it must be affirmed by a person from the LL/management office with "personal knowledge" of the LL's books and the ledger was prepared in the normal course of business, not specifically prepared for the litigation.

See the recent decision I attached to this post 88 A & R v Waterberg that discusses how affidavits must be prepared.
151124 88A&R v Waterberg Spears.pdf


Second, LL's have a habit of applying a rent payment to the wrong month. If you've been on rent strike for 25 months from January 2014 through and including January 2016, then a payment you might have made would likely be applied by the LL to the oldest outstanding month, in this case Jan 2014.

That can have implications, especially on laches. LLs use this technique to avoid a claim of laches.

The way around this is for the tenant to "earmark" your check or money order to a specific month. If you want the check to apply to - let's say June 2015 - then on the check/MO the tenant should specify that the payment should be for that month and "no other months." I routinely write "Rent for Month Year and for no other months" on my payments.

The LL might decide to fight you with this, and produce a clause in your lease, but I've seen a number of court decisions that support tenant earmarking. (too lazy to look for them at 6 AM).

If withholding for bad conditions and an abatement, the rent can be held in escrow by your attorney (if you have one), or be paid into court. It's a hassle but the LL won't have the money either.

One mistake tenants often make is to withhold for long periods because they are tight on money and end up not having it when all comes due. Or they go ahead and spend it. DO NOT get caught into that problem. I always put it aside or purchase a M.O. so when a case is decided, the money will be there.

You can oppose the LL's motion and make him work a bit harder to get it, and you can point to all those times that you paid the rent and he ended up not doing the repairs.
You do not have the required permissions to view the files attached to this post.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 8464
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Opposing LL's Motion to Amend in Nonpay

Postby Clorox » Sat Feb 06, 2016 7:46 pm

it seems like the rent deposit statute is a potential end-run around the LL even having to do this, huh? (providing for an immediate hearing and payment of "undisputed" amounts)

in my experience i haven't seen many judges enforce it but i guess it happens sometimes?
I am not a lawyer and nothing I post is legal advice. Consult with a tenant attorney if you have legal questions.
Clorox
 
Posts: 7
Joined: Sat Jan 02, 2016 8:41 pm

Re: Opposing LL's Motion to Amend in Nonpay

Postby TenantNet » Sat Feb 06, 2016 8:44 pm

In your experience?
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 8464
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Re: Opposing LL's Motion to Amend in Nonpay

Postby Clorox » Sun Feb 07, 2016 9:52 am

with tenants/lawyers i know, it seems to sometimes be judge specific whether they enforce rpapl 745
I am not a lawyer and nothing I post is legal advice. Consult with a tenant attorney if you have legal questions.
Clorox
 
Posts: 7
Joined: Sat Jan 02, 2016 8:41 pm


Return to Housing Court - NYC

Who is online

Users browsing this forum: No registered users and 1 guest