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Counterclaim help!

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Counterclaim help!

Postby SecondMeansOfEgress » Mon Sep 05, 2022 11:48 pm

I am about to go to Housing Court Pro Se for a nonpayment case (complicated: landlord refused ERAP, etc) and have indicated in my answer I will be counterclaiming for overcharges.

1) LL is required to provide heat/hot water. However they installed an illegal boiler in my apt and hooked it up to my gas and electricity, so I have been paying for it. Do I just bring receipts for utilities I have paid? I don't know how the heat can be separated from cooking gas and other electric use. I also don't know if I need to file some sort of paperwork for the counterclaim. They didn't mention anything when I gave my answer and cited it.

2) I also got my rent history, my longtime RS neighbor's rent history and some other records that indicate a fraudulent scheme to deregulate my apartment. If I prove that, and I can use the "default method" can I use my neighbor's rent on the date I moved in? My neighbor's "legal regulated rent" was several hundred dollars less than mine and the actual rent they paid was even a few hundred less than that. I don't have any more information about rents in the building. I don't understand how "discovery" works, if I am supposed to be able to access any records my landlord has before my first court date.

Given complications of both 1 and 2: Do I have to give an exact number on what my counterclaim is the first court date? Can I give my best estimate based on what I know and the judge can adjust it or is the whole thing dismissed if my amount is not completely correct?

Any info or advice or anything greatly appreciated as I have not been able to find a lawyer.
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Re: Counterclaim help!

Postby TenantNet » Mon Sep 05, 2022 11:59 pm

Please do not post the same question in multiple areas of the forum.

Did you file for ERAP? As we understand it, the act of filing should in itself stop the case for the time being, even if the LL won't accept it..

"If you have a pending eviction proceeding, your ERAP application will stay (temporarily stop) your eviction case. This stay remains until a decision is made on your ERAP application. Housing Court will not hear your case and you cannot be evicted during this stay."
-- https://www.nycourts.gov/courts/nyc/civ ... ERAP.shtml

Have you contacted Right to Counsel or Legal Aid/Legal Services? (If so, who?) Yes they are backlogged, but I know people can get attorneys. These days you do NOT want to go to court without a lawyer. Even if you put in an answer in person, the court clerks often screw it up. Again, you REALLY need a lawyer.
- https://www.righttocounselnyc.org/
- https://www.nycourts.gov/courts/nyc/hou ... cess.shtml

In general the NYC Housing Maintenance Code requires central heat. Did the LL do this for all units in the building? Especially if you're RS, this would be a reduction in service. (did they get permission to do this?) However, I don't know if a court will deal with this issue.
- viewtopic.php?f=3&t=13787&p=58151&hilit=central+heat#p58151

You posted in the RS section. Are you RS, or not?
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Re: Counterclaim help!

Postby SecondMeansOfEgress » Tue Sep 06, 2022 12:19 am

Thank you!

Yes I have been trying to find a lawyer several hours a day for weeks. I have called all 8 they referred me to and several more. I will keep trying. I have one I can talk to for free but they can't represent me.

I was approved for ERAP but landlord refused it. Most of the amount they are suing for would have been covered and they are not supposed to but they are doing it anyway.

Yes I am RS, but my LL has fraudulently tried to deregulate my apt. They did not get permission. The whole thing is illegal. Can I bring up reduction in service as a counterclaim? If a court won't deal with it, who will??
I'm so confused!!!
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Re: Counterclaim help!

Postby SecondMeansOfEgress » Tue Sep 06, 2022 12:30 am

Sorry about posting in a different area; this is my first time posting. My other question was about abatements:
I am citing breach of Warranty of Habitability among other defenses and counterclaims for a nonpayment case.

My apt and bldg have many open violations from HPD, DOB and FDNY, some go back many years, some are quite serious and hazardous, ie fire-rated construction.

My landlord also makes me pay my own heat/hot water, in violation of lease and RS law.

My question is, how much could the rent be reduced and for long? I am a little confused about the definitions of abatement, reduction and overcharge repayment and how those are usually decided in real court rooms. 

If the judge does determine I should be paying less, is that then applied to the amount of arrears the landlord claims I owe, is it going forward, does it contine until they fix all violations?

Thank you!!
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Re: Counterclaim help!

Postby TenantNet » Tue Sep 06, 2022 12:54 am

BTW, please respond to the email we sent you regarding activation; we need to see if there is a real problem with that.

Usually free legal help is tied to your income. See the link above for income eligibility. I don't know which 8 they gave you. But you have to keep trying. If nothing else, when you appear in court, tell the court attorney or judge you need a lawyer. They might help - I don't know.

I understand the difficulty and why it may seem you're going in circles, but you need someone that knows how cases function (you don't). If you know any politicians, ask then to make a call. If you have any disability, make sure they know that.

You say you have a lawyer you can talk to, but they can't rep you. I won't ask why. But what are they telling you about all this? Are they real tenant lawyers?

As far as I know LL refusal should still stay the case.

"If a landlord refuses to provide information needed to complete an application or refuses
to accept funds, the tenant will be provided with a letter that can be shown to help stop an eviction. "
- https://otda.ny.gov/programs/emergency- ... ctions.pdf

Some LLs are trying to undermine the ERAP system, for example all of a sudden claiming they need the apartment for a family member. A lot of case law on this is still unsettled.

"Yes I am RS, but my LL has fraudulently tried to deregulate my apt. They did not get permission."

Details. A LL cannot just deregulate a unit (especially after 2019). When did you move in? Did you have a RS lease at the outset? Have there been proper renewals? What you said makes no sense.

I would try to put in any counterclaims, but some judges just don't want to deal with that. Look into the legality of the heating system. On overcharges, you might want to file with DHCR (but we're reluctant to recommend that). Courts can also deal with overcharges, but they have their own pros and cons. Services are generally handled by DHCR.

Without knowing the details of what you paid, what you didn't, and the circumstances, there's not a lot we can say as to strategy. But I would prioritize your case. What's the number one thing you want to accomplish? Go after that. Don't try to put everything you can think of into the case. Judges hate that.

Also, did the LL acknowledge the RS status in the Petition and Notice of Petition? Failure to that should get the case tossed immediately. Read the court documents carefully.

So...
1. get a lawyer
2. Get a lawyer
3. Ask the court for an adjournment so you can get a lawyer and use whatever powers you have to convince the court you need help.
4. Once you get a lawyer, a) ask them to file an amended answer and b) make a motion to dismiss based on whatever grounds are appropriate.
5. Any counterclaim would be handled at trial -- you do not want to get to that point, but it has to be listed in your amended answer.
6. Look into the legality of the heating system. Many LLs pull that shit.
7. Overcharges ... I'd deal with all the other stuff first (you can still file with DHCR for overcharges later).
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Re: Counterclaim help!

Postby TenantNet » Tue Sep 06, 2022 1:03 am

On all your questions about abatements ... put all that aside for now.

An abatement is a one-time reduction in rent for some reason. It's essentially a counterclaim.

WOH is a defense that can lead to getting an abatement.

Lack of services are handled by DHCR.

Make copies of all the violations. Ask the court to take judicial notice of all the DOB and HPD violations. I think they are supposed to do that and it saves you from having to get certified copies. I don't know about FDNY, but toss that in.
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Re: Counterclaim help!

Postby Landlords Boy » Tue Sep 06, 2022 1:24 pm

"Yes I have been trying to find a lawyer several hours a day for weeks. I have called all 8 they referred me to and several more. I will keep trying. I have one I can talk to for free but they can't represent me."

Don't just get any lawyer; get a lawyer who specializes in landlord-tenant matters. If you have one who doesn't, even if they're "free", it may cost you (as well as landlords like myself) time better spent elsewhere.
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Re: Counterclaim help!

Postby TenantNet » Tue Sep 06, 2022 1:44 pm

Thanks LL boy. I always make the point a tenant should get tenant attorney, not just some person with a law degree. A lawyer who specializes in things like taxation, personal injury, immigration (the list is long) will likely know very little about tenants' rights. Even a landlord attorney might not believe in rights for tenants or rent regulation. We have a number of real tenant attorneys who advertise on this site, but there are others as well.

But depending on a tenant's income, they might qualify for Right to Counsel, which should get you a free attorney with groups like Legal Aid, Legal Services, Mobilization for Justice, Take Root Justice, Northern Manhattan Improvement Corporation, RiseBoro and others. Some serve certain parts of town, so check into their area of service.

Problem right now there's a huge backlog because of COVID and the courts are pushing through too many cases without enough attorneys to handle things. That's why one has to really fight to get a lawyer and point out special needs, if any.

LLBoy has a point, we've known this, but it isn't talked about a lot. Many tenants are confused by the process and throw everything in at once. Judges hate this and landlord attorneys hate this. It isn't that the tenant's claims don't have merit ... most do. But the court has to slow down and explain every little detail to a pro se tenant. To the original posted, don't take offense, but that's one reason why I say you must get a lawyer ... of course the better reason is to protect your rights and keep your home.
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Re: Counterclaim help!

Postby SecondMeansOfEgress » Tue Sep 06, 2022 7:49 pm

Yes, thank you for explaining but I am aware that there are different types of lawyers. I have consulted with actual Tenant Housing Lawyers provided by New York County Lawyers Association and Service Employees International Union, but they are unable to represent cases in court.

I have 12 defenses with ample evidence for all and I would appreciate the opportunity to present it all in court. Perhaps the judge will hate it. Perhaps the landlord's attorney will hate it (!). Perhaps the court will have to slow down to explain something to a pro se tenant. But the alternative shall be a family of hospital workers loses their home of 20 years and a child becomes homeless because of landlord harassment.
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Re: Counterclaim help!

Postby TenantNet » Tue Sep 06, 2022 9:08 pm

The County Lawyers would not have have such services, I'm pretty sure I've seen SEIU attorneys represent tenants. See https://www.seiumb.com/insurance/us-legal-services
and https://www.seiumb.com/insurance/us-legal-services-faq.

But we're not talking about union attorneys; I mentioned a number of groups above. See Right to Counsel. Ask the court for a referral.

You may not fully appreciate the process. This is not Perry Mason (if you're old enough to remember). You can have 5,000 defenses and another 5,000 counterclaims. That does not mean you can or should use them all.

See https://www.nycourts.gov/courts/nyc/hou ... part.shtml
When you first go to court, you're in the resolution part. You can negotiate with the LL, but you can also make motions, seek to amend the answer, try to get a case dismissed on any number of grounds, etc. You can seek adjournments to find a lawyer (they might give you a month or so depending on the court calendar.

And you should know enough not to believe half of what the LL lawyer will tell you. As one tenant attorney said, "Lots of people do not know. And if they "know," that knowledge is often incorrect (i.e. [claiming something is] due to LL fraud). Certain LLs actually prefer weak [tenants] ... because they can manipulate them."

What you don't do in the Resolution Part is go to trial. That comes later.

Not only that, some judges are more than willing to throw tenants to the wolves and make bad decisions. You cite the alternative is where a family loses their home. Guess what, that happens every day.

Look, we've been at this for 30 years. Believe me when I say you really need good representation.
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Re: Counterclaim help!

Postby SecondMeansOfEgress » Tue Sep 06, 2022 11:28 pm

Yes, I am trying to get representation in addition to any consultations with tenant lawyers to help me prepare in the event I must go pro se.

The NYCLA most certainly does have such services, which I would recommend to every tenant on this forum and I don't know why you would dismiss them and say they don't? From their website: "The Legal Counseling Project gives the public the opportunity to meet one-on-one with an attorney to discuss their legal problems and explore options and solutions.  The project provides counseling to individuals at evening clinics held once a week on an appointment-only basis in the areas of (3) landlord/tenant including holdover proceedings and non-payment proceedings.  The volunteer attorneys review documents, answer questions, discuss areas of concern that the individual should be aware of when entering certain agreements or point out various methods whereby the individual can correct a problem or seek appropriate assistance and direction."

They have been very helpful and they are not condescending at all.

If my case is adjourned and/or goes to trial, does it stay with the same judge who is listed on my calendar for my first court date? Under what circumstances would the judge change?
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Re: Counterclaim help!

Postby TenantNet » Tue Sep 06, 2022 11:43 pm

I said County Lawyers don't take on cases and represent tenants, and to my knowledge, that's true. Representation means they take on your case and appear on your behalf in court; that means they have a legal attorney-client relationship with you. County Lawyers does not do that.

They offer counseling and advice, just like the Association of the BAR does. But they do not offer representation. You yourself said above they do not represent people. So please don't twist things.

No one said they were condescending.

Usually Resolution Parts and Trial Parts have different judges ... but with COVID still impacting things, it's hard to say.
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Re: Counterclaim help!

Postby Landlords Boy » Tue Sep 20, 2022 2:57 pm

SecondMeansOfEgress wrote:Y\...I have consulted with actual Tenant Housing Lawyers provided by New York County Lawyers Association and Service Employees International Union, but they are unable to represent cases in court. I have 12 defenses with ample evidence for all ...

Hmm, I've heard something like this before. Another tip: don't lie to your own lawyer.
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