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Holdover Proceedings Schedule and Improper Service Question

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

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Holdover Proceedings Schedule and Improper Service Question

Postby luckyredpr » Wed Jun 30, 2021 5:51 pm

Rent Stabilized Apartments
Kings County and New York County

Does anyone know how Holdover Proceedings are being scheduled with the current backlog. I've been informed that dates will be assigned about two weeks prior to the actual court date. However, I couldn't get any information on the length of the backlog.

Will they be scheduling based on the filing date?

Has anyone in Kings County and/or New York County received a date in a Holdover case? If so, would you be willing to share the date the LL filed and the date the case has been put on the calendar. Or, the number of weeks between filing and a court date?

I'm supposed to go out of town later in July and I am concerned about missing the court date.

Thank you.
Last edited by luckyredpr on Fri Jul 02, 2021 7:58 pm, edited 1 time in total.
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Re: Holdover Proceedings Schedule

Postby luckyredpr » Fri Jul 02, 2021 7:20 pm

There is a Holdover case pending with my LL, waiting for a court date. I have access to the related filings and documents because I called the Clerk of the Court office regularly after receiving a notice to cure.

The affidavit says Jane Doe received the papers and the description is of someone I don't know. On the court website, it indicates that papers were filed with me, Jane Doe, and John Doe as respondents. There are no other occupants of my apartment and no-one has even been in my apartment just to visit since prior to November 2019. The LL has never served papers to anyone but me in the past and I have not had a roommate in over twelve years.

Is this information to include in an answer? Is this improper service? False affidavit?

Thank you for any assistance you can give.
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Re: Holdover Proceedings Schedule

Postby TenantNet » Sat Jul 03, 2021 1:14 pm

As you probably know, holdovers are different from non-payment proceedings in that the main allegation is that a tenant has stayed past the end of his/her lease. This can be from regular lease expiration or the landlord choosing to terminate the lease early with the claim that the tenant either violated term(s) of the lease or is creating a nuisance. The rules are different for rent stab tenants as for unregulated tenants.

Many things with the courts were put on hold or modified due to COVID, and now appear to be phasing back in. But I can't tell you which procedure(s) you will need. The is - or will be - a tremendous backlog of cases, but things are not frozen.

Since you are rent-stab, the LL must serve you with a Notice to Cure and service must be using the same manner as other notices. Many - if not most - situations require a Notice to Cure, but there are exceptions where no Notice to Cure is required, called "non-curable." An example is a claim that the tenant is not using the unit as his/her primary residence. That is not curable.

After a certain time, if the LL feels the tenant has not cured the situation, they then must serve a Notice of Termination, again with proper service.

After that, the LL must serve the tenant with a Petition and Notice of Petition. At that point a tenant should put in an answer with as many defenses as are appropriate. Tenant can put in their answer at the Housing Court clerk's office, but from what I've seen, the clerks intentionally leave off some important defenses, requiring a tenant to make a motion to the court that the defenses be allowed. A way around this is to answer in writing to the LL's attorney, with proper service and filed in court. That gets complicated and we really suggest having an attorney for that. (actually holdovers can get complicated and having a lawyer is highly recommended, not just for the answer).

If filing in person, the clerks will give you a date of the first appearance.

What you describe is "bad service" and should have the clerk put that on the answer. Make absolutely sure they do. You don't need details at that point, but should be outlined later if you make a motion to dismiss based on this. You should also demand a Traverse Hearing be held. That is a mini-trial with the trial where the process server comes and testifies how service was made, and then you or your attorney can confront him.

Read carefully on what constitutes proper service. If by conspicuous service (very common) where the papers are taped to your door, they must also send them to you by regular and certified mail (so they would have receipts of the certified mail), and for each mailing method, it must be sent to each tenant on the lease plus John Doe and Jame Doe.

The process server is also required to have logs. I know of one case that was dismissed because the affidavit of service (in your case court file at the clerk's office) said the floors were beige, but they were grey. The affidavit should also describe you (height, weight, hair color, age, etc.) Pay attention to detail. If they said they were handed directly to you (personal service), then if you can prove you were out of town at the time, that would pretty much show bad service (so get that airplane ticket receipt showing you were out-of-town at the time).

Here are some useful links:

https://www.nycourts.gov/courthelp/Home ... ices.shtml
https://www.nycourts.gov/courthelp/Goin ... vice.shtml
https://www.nycourts.gov/courthelp/goin ... vice.shtml
https://undisputedlegal.com/how-to-serv ... ork-state/
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