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LL DENIES RS

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

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Re: LL DENIES RS

Postby TenantNet » Wed Nov 05, 2014 7:30 pm

Who is he? Don't assume I know what you mean. The LL, the LL's attorney? The judge? Who?

What was the nature of the motion and the second motion? I don't think you can file a second motion to "take back" the first motion. You can discontinue, but that's not a new motion.
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Re: LL DENIES RS

Postby Cazmia » Mon Nov 10, 2014 12:49 am

Pardon, the "he" is a joint term describing the landlord and the landlord's lawyer. He did just that-filed a motion to "unsay" what he had previously said.

His original Petition against me stated the bldg was not rent stabilized due to it being abandoned between 1969 and 1974. He then asked for an adjournment and within that time his lawyer filed a motion saying he had "misunderstood" the details of the case and that the bldg was actually not stabilized because it was 5 units, NOT because it had ever been abandoned.
However, the landlord's signature was on the original Petition stating that every statement was true to the best of his knowledge, so how could his lawyer then try to claim there was a misunderstanding?

The original Petition had also stated the LL was registered at HPD at a tenant's address, and he later took that back saying he had made another "error".

He didn't make his big reveal about registering the bldg at a tenant's apt until after I accused him of perjury in my cross motion.

Also, and this seems to be the MOST relevant part, he stated that the 5th apartment had been illegally divided in his answer to my cross motion.

This, I feel, was the last missing piece I needed to prove to DHCR that the 6th unit they discovered in 1995 still existed when he purchased the bldg.
Which should be all I need to prove I am rent stabilized without a doubt.

He (the LL and his lawyer) destroy his own credibility with his own words.
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Re: LL DENIES RS

Postby TenantNet » Mon Nov 10, 2014 1:05 am

It would not be a new motion. It might be an affidavit (or affirmation if by an attorney) in further support of the motion. A motion asks for something to be done, i.e., the case be dismissed, based on certain grounds. That's what a motion is.

Putting in papers citing new facts, or new arguments, is not in itself a new motion.

What I think you're describing is an amendment to the petition (with different arguments). In some cases a Petition may be amended as of right. In otehr cases the Petitioner might have to file a motion to amend the Petition. If that's the case, it's not a "new" motion. It would be the first motion.
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Re: LL DENIES RS

Postby Cazmia » Tue Nov 11, 2014 2:13 pm

Thank you, I realize getting my legal terms correct is important. I feel that an ammendment should bring forth new evidence, or support for an argument, not be used to present an entirely new set of facts that supercede previous statements that were sworn to under notary. It seems if that were the case, perjury would not be considered an offense, but simply something you can "unsay" when it backfires. =)
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Re: LL DENIES RS

Postby Cazmia » Wed Jan 14, 2015 12:22 pm

The battle continues. The lawyers are getting increasingly subversive, having brought a Supreme Court Ejectment Order against one tenant without serving him! I found out almost a month later, while I was perusing the Bronx County Clerk's website for unrelated info and happened to see the tenant's name there.

I have written the Bar Association (ABA) about that.

Meanwhile, I fear that this tenant is on his way to losing his apartment. There is a broken knife on top of the mailboxes in the hallway and we heard a ruckus one afternoon. I wonder if that wasn't the owner prying the tenant's mailbox open to take the Summons and Complaint, so he wouldn't know about the case and wouldn't show up to answer (which he didn't).

If so, this is lower and more sinister than I ever suspected the owner and his attorney are capable of being. If we go to the Supreme Court after the 20 day limit to answer has expired, I don't see why an order to show cause would not be signed by a judge, but it's the whole idea of having to wonder every moment if you've been brought to court without knowing it...

Will I have to spend my life checking the county register and eCourts daily as long as we live here? Why, also, would the lawyers bring one case in Housing Court and another at the Supreme for the same building? There isn't anything they haven't tried. Maybe it's a (good) sign of their desperation, because they have nothing else to go on..

This may be a banner case for the Supreme Court. I expect that we'll have our day in court soon. I am also submitting our proof of rent stabilization to the DHCR, because they have responded requesting the basis for our 6 unit claim, when the building's certificate of occupancy and HPD records all reflect 5 units. We have signed affidavits from 3 tenants who have witnessed the extra unit being rented out over the years and an inspection from DHCR 20 years ago which yielded a 6 unit finding.

The owner has protested, saying the 6th unit was created as a result of the first floor apartment being split and that it is not legal, so it doesn't count towards stabilizing a building. One judge has said that if the unit is not legal, it may be the case that the building isn't stabilized. Of course, that was an HP Housing Court judge (We brought a harassment charge and yes, he violated the stipulation he signed and the harassment case is back on calendar)..We beg to differ with the HP judge. Another judge has said we have such a good case that he could not allow the owner's lawyer to go to trial unprepared as he was, and he took the case off the calendar pending their preparation. That case was eventually discontinued.

In our letter to DHCR, we are citing the Supreme Court case Rashid versus Cancel, which decided that an illegal basement that had been rented out subjected a building to rent stabilization. If an illegal basement could stabilize a building, surely one apartment having been divided into 2 and rented out could..

Do you know much about Rashid versus Cancel and if this case would have merit relating to our case? I can't find anything online saying the decision was ever appealed..
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Re: LL DENIES RS

Postby TenantNet » Wed Jan 14, 2015 1:01 pm

First, are you sure it's Supreme Court and not Housing Court? While SC can hande the cases, it's not the usual method. (and most tenants don't know the difference).

Second, sewer service like this is very common. A summons/complaint would need personal or substitute service (the latter includes mail, but also requires posting on the door). Check the affidavit of service submitted into the court file for details on certified mailing. You can then check the certified mail serial number on the USPS website to see what happened.

If you catch the owner breaking into a mailbox, that's a federal offense, and you shoud contact the Postal Inspectors.

As bad as LL attys can be, chances are they did not know about other shenanigans.

DHCR does not handle court cases and is not aware of court cases. (it's hardly a banner case for the court). The DHCR finding from 20 years ago should work for the DHCR case. But also you should look at the building's original plans (probably on microfilm at the DOB) and any legal alterations they did.

I think the owner is wrong and just making up excuses. How does one make a mistake like that? Of course it counts if they are renting it like that. If he's so concerned it not being legal, why hasn't he removed the barrier?

Thins like this can get complicated. A lawyer can certainyl help with many judges being dismissive of tenants.

I am not familiar with that court case:
http://law.justia.com/cases/new-york/ap ... 51585.html

which is Appellate Term, 2nd Dept., which does not mean it necessarily holds in Manhattan. Nevertheless, still cite it.

And look at all the cases cited in that decision.
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Re: LL DENIES RS

Postby Cazmia » Wed Jan 21, 2015 9:44 am

Thank you. In this case the owner cannot take down any (alleged) barriers, because there is a tenant living in the other apartment.

This is all an issue, because HPD records and the certificate of occupancy ftom 1926 say the building is 5 units. However, if the owner bought a building that was obviously converted, we feel his remedy would lie against the prior owner who failed to update public record, not in agonizing the current tenants who know they are subject to the rights of rent stabilization, because they have lived in a 6 unit premise since the beginning of their tenancies.

One of our tenants has been so stressed the entire 2 years he's been in Housing Court. He was now served papers to be in Supreme Court.

He was served the same day he received open heart surgery and we are clueless as to how to avoid unnecessary stress on a man who, at the moment, cannot walk or feed himself.

Will this man have to appear in court before he can recuperate? I've read he may not be himself for months.
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Re: LL DENIES RS

Postby Cazmia » Thu Jan 22, 2015 11:34 am

Good afternoon,

I wanted to say that I find Tenantnet invaluable and, though you admit to not knowing absolutely everything about the law, you have been of great comfort and assistance to thousands in need. There is no other site I am aware of that has served as such a ray of light in those seeking knowledge for a long, difficult legal journey.

We have prepared a (long) and detailed answer for the heart patient that we hope will be entertained. I can't find any online text specifying how long or short an answer to a Summons and Complaint should be.

As suggested, we have denied the complaints of the Plaintiff one line at a time and in order. We have also added additional lines which describe the Plaintiff's lack of consistency in his statements and attestments to the fact that building is 6 units and stabilized.

Since this is an answer, do you think it might be nessary to attach documentation in support of what we are saying..or is that something we would save for later on in the case as it porgresses? We don't want to give up any defenses due to not having submitted them when we answered.

Supportive documentation could make our answer quite thick, however, and being pro se, we are not familiar with the Bronx Supreme Court process.

Mind you, I always Google my questions for hours and try only to come to tenantnet when I can't find a clear answer. Forgive me for trying to "pilfer" legal advice. LoL

Thanks.
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Re: LL DENIES RS

Postby TenantNet » Thu Jan 22, 2015 1:30 pm

It can't be legal advice as we are not attorneys.That's an important point and we say that on every post (in the red signature).

An answer should be only a few pages long and should not include much detail at all. For each allegation the LL makes, simply say that you admit or deny the allegation, or that you deny knowledge of the allegation or that you refer the allegation as a question of law. 4 possibilities for each allegation. Number them the same as the LL.

At the top the first point in the answer should be "General Denial"

Then you list your defenses.

Then you list your counterclaims.

You can add some, but not much detail on defenses and counterclaims. Maybe one or two sentences for each item. No need to prove anytheing here. Don't even try.

At the end summarize everything in a "Wherefore" paragragh...

"WHEREFORE Respondent demands judgment as follows:"

Then summerize the above points. Not more than 1/2 a page.

Then sign, date, cc to LL atty. Add a vertification.

Try to google examples on the web.

While the court will give pro se respondents some room, I strongly advise that you get an attorney. Supreme Court is a different animal than Housign Court.
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Re: LL DENIES RS

Postby Cazmia » Thu Jan 22, 2015 6:44 pm

I couldn't help noticing that, in the Summons and Complaint, the landlord's attorney attached documentation to back up what he is saying.

So, if we were to say in our answer that the building was inspected and found to have six units, shouldn't we attach a copy of the inspection to our Answer as "Exhibit A"? Or, if the claim is warranty of habitability breach, wouldn't we want to include pics of the terrible conditions at his apartment and a copy of the complaint sent to DHCR regarding those conditions?
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Re: LL DENIES RS

Postby TenantNet » Fri Jan 23, 2015 12:39 am

Again, we are not attorneys and your really need some legal advice. We do not know all the details of the case, so we can only speak in generalities. In my experience, putting in an answer does not require proof at the outset. That is what trials are for. Sure you can add some stuff, but don't overdo it at this stage. OTOH, motion practice might require some level of proof. But it would take a book to explain all the ins and outs on this stuff. We do not have the capacity to explain it all, and this website is not intended to do the work for you. Again, it might behoove you to get some real legal advice. If the tenant has little income, he might qualify for Legal Services or Legal Aid.
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Re: LL DENIES RS

Postby Cazmia » Tue Feb 17, 2015 11:02 am

Update: Proof of six units has been submitted to DHCR, as well as 9 individual tenant complaints. It is particularly distressing that the rest of us are being brought to Housing Court, but the owner, seeing an advantage over this sickly heart patient, is targeting him and trying to push an Ejectment action forward quickly.

After documents were submitted describing the tenant's physical health, it were as if this "spurred the landlord on". His cardiologist has said stressful situations will hinder the taent's recovery, so the owner QUICKLY filed a Request for Judicial Review with an Order to Show Cause to force him to come to court..

It's extremely sad that the owner seems to see another human being's weakened state as an opportunity to put him out into the street and obtain his property, simply because he can barely walk enough to make it to court.
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Re: LL DENIES RS

Postby Jezebel » Tue Feb 17, 2015 4:54 pm

I know that TN has mentioned this a couple of times, but if I were you (or rather, if I were your neighbor with serious health issues,) I would start looking for a lawyer, at least to handle the potential eviction of someone with an acute heart condition. I know that money is an issue, but there are free or low-cost options out there, such as Legal Aid, or some of the community organizations such as NMIC (I think you said you are in the Bronx.) I know that there is a great demand for such services, and qualifying can be difficult, but it is definitely worth a try.

I know that you've done an enormous amount of work on your own, and have educated yourself on the issues both legal and administrative, but as someone who was a pro se tenant for a year and a half before I hired a lawyer, I can tell you that my victories when I was pro se were great, but I don't think I could have gotten my final (very good) result without a lawyer. My case also dragged on for another 3 years after I hired a lawyer, and I don't think I could have handled the burden on my time for that long. It's just something to think about. Your fortitude may not be waning any time in the near future, but your neighbor's may -- and you are definitely stronger as a group.
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Re: LL DENIES RS

Postby Cazmia » Sun Mar 08, 2015 2:56 pm

Thank you for the advice. We actually took a combined week off of work looking for legal aid, starting at our local council person's office (Vanessa Gibson) and ending at a neighborhood tenant's organization, all of which referred us to the Legal Aid Society and the Bar Association who said there is a waiting list. We even had a comment from a less courteous gent who told us to be fore warned: "You get what you pay for".

After an exhaustive amount of energy spent on dead ends, only then did we go full-on pro se. It is very sad, and I feel the general (low income) public should know that there isn't much help out there for us, only a long path that all lead to dead ends in terms of true assistance. I have employed a thousand dollar Wall Street lawyer in the past who constantly came to our cases empty-handed and found that the best way to put forward all the necessary facts yourself is pro se. When a lawyer speaks for you, you becomed barred from setting forth testimony you feel is important, in exchange for a mouthpiece that offers comfort and perhaps gets you taken slightly more seriously by the odd, ignorant judge out there.

However, most judges are open to hearing straight from a tenant when the testimony is organized, to-the-point and sincere. This has been my experience so far as it pertains to Bronx Housing Court, but I am by no means seasoned as a court representative.

That being said, there has been some good news from DHCR. A harrassment complaint was recently rejected with a "Notice of Return and Opportunity to Refile". DHCR refused to open a case until they knew our basis for saying the place was six units since, as they sited, "the cert of occupancy says it is five units, as does HPD and the owner has never filed with us".

We answered swiftly with documentation from the owner in which he stated one apartment had been illegally divided into 2 separate units in court testimony. We also submitted affiadvits from 3 tenants who state they have seen all six units rented out and a copy of a 20 year old inspection in which the place was found to contain six units.

Weeks later, the DHCR responded with a docket number saying they had taken our case. We are now scheduled for a conference for the purpose of evaluating whether or not the landlord has been guilty of harrassment for these repeated attempts to evict us and refusing to renew our leases.

I take this as a sign that DHCR, having viewed the evidence, indeed feels they have jurisdiction in this matter, which would make me feel we have won our battle to prove rent stabilization.

Am I correct in assuming this?

Since DHCR clearly expressed beforehand that, to open the case, we must provide evidence of six units, wouldn't the conference they have demanded the landlord and I attend be concrete evidence that we are officially rent-stabilized, despite what proof he shows otherwise of 5 units?
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Re: LL DENIES RS

Postby Cazmia » Wed Mar 11, 2015 4:22 pm

There is just one other detail that troubles me.

At the time we moved into the building, we were not aware of our rights as rent stabilized tenants and sign the lease that the landlord gave us. It was not an RTP-8.

Is there such as a thing as forfeiting your right to rent stabilization due to signing a non-RTP-8 lease?

As far as I know, our rights are in the RS laws, but a court mediator had said to us, "If you're rent stabilized, where is your lease with the attached riders?"
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