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re: New Allegation in the Notice of Termination

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re: New Allegation in the Notice of Termination

Postby innocent1997 » Mon Oct 07, 2013 5:08 pm

Hi all,

According to the lease agreement, it is required that a notice be sent to me to correct any violation of lease agreement prior to lease termination.

1 month ago, we received a 10 days notice to cure to install carpet as required by the lease's "carpet provision". No other mentions of violation of any lease provisions are mentioned.

After 10 days pass, I received notice of termination citing that I violated the carpet provision. However, there is a NEW allegation in the termination letter stating that the termination is also based on continuous noises from my apartment that resulted in other tenant complaints which is a violation of another lease provision.

Question is if I get taken to court, do I have a case against the landlord with respect to the predicate notices not accurate, i.e. the notice of termination included an additional allegation not included in the notice to cure.

Innocent 1997
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Postby TenantNet » Tue Oct 08, 2013 2:42 am

I agree, the Notice of Termination should be tossed.

The Notice to Cure must list all facts and a termination with new facts would be improper. Also seems the new allegations are not specific and ambiguous.

We asked a tenant attorney who agreed. "There are cases that state that the specific lease provision allegedly violated must be cited. A notice can't just state vaguely something like 'you violated your lease.'"

Seems like the LL is fishing for a way to get you out. Be aware that since you are not rent regulated, even if this case gets tossed, when the lease expires normally, the LL can just not renew.
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re: 2nd court hearing date

Postby innocent1997 » Wed Oct 09, 2013 2:20 pm

Dear all,

I am scheduled to appear in housing court as a defendant (tenant) in a holdover case for the first hearing soon.

I understand the case does not usually get settled in the first hearing, hence a second hearing will be scheduled in about one month.

If I know ahead of time that I will have work commitment preventing me to attend the second hearing, let's say for the week of Nov 4 to Nov 8, 2013.

When the judge is trying to the second hearing on the calendar, if I tell the court that I will not be able to attend during that nov 18 to 22 time frame, will this usually be granted by judge to NOT hold 2nd hearing during that time?
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Postby TenantNet » Wed Oct 09, 2013 2:45 pm

You're right that the first appearance is usually adjourned. (not really a "hearing," but a court appearance).

What happens is that the parties usually agree on a return date. There should be a large calendar on the wall of most court rooms with any number of unavailable dates crossed off. Often, it's about a month ahead that there would be available dates. So the parties can choose one of those dates.

So you can tell the opposing side that you're not available during that week. You don't even have to give them a reason (whatever the reason is, it's not their business). The LL's atty might have dates where he/she is unavailable as well. If they are rational beings - not always the case - they will be responsive. Unless there are other reasons, a first-time adjournment will usually be granted by the court.

You can, in this stipulation, ask the court for an inspection by HPD if you have warranty of habitability defenses, and the access dates/times should be specified in the stip. (you need to give access to the inspector, but not the LL - but the LL might demand access later).

Your issues with procedures should be raised in your answer, but also be raised in a motion before the Resolution Part. The judge might tell you to reserve some parts of the motion for the Trial part, but other things, like a defective Notice or Termination, should be ruled on by the judge in the Resolution Part.

You can make the motion in writing (but that gets into specific service issues) or orally. Ask the court clerk how to make an oral motion (often called an "application") Some court clerks (and I mean the court attorneys, not the check-in people or guards) can be very helpful. Get there early and watch what goes on ... that might give you an idea who is the best person to approach.
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re: another serving question

Postby innocent1997 » Wed Oct 09, 2013 4:30 pm

Mr. TenantNet,

Thank you for the response. I have another interesting situation that I would like to share and see if you or anyone have any comments also.

Sequence 1: On Oct 7, someone placed the holdover petition on the door. (i.e. nail and mail method)

Step 2: On Oct 8, we received the regular mail. (i.e. as part of nail and mail method).

a. We suspect that the landlord did not attempt "personal" or "substituted" methods prior to the nail and mail method as someone was usually home in morning and evening.

b. Also, when we reviewed the regular mail from step 2 above, we see that the stamp date on the envelope was Oct 2. This seems to prove the motivation that the landlord never intended to serve personally using either the "personal" or "substituted" methods as required by law first.

Based on above point a and b, we plan to argue that the serving was improper.

Do you think my argument above is strong in front of judge ? Thanks
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Postby TenantNet » Wed Oct 09, 2013 5:21 pm

This is all under the requirements of service. The Notice to Cure, Termination and Petition are all required to be served properly. That means they must try personal service twice. If that does not work (or substituted service), then they must use conspicuous place service (also know as Nail & Mail). For that it must be taped to your door (or put under the door) and mailed to you be regular and certified mail.

All of what they have done must then be detailed in an Affidavit of Service and filed with the Court file.

What you describe is putting the cart before the horse. I would get a copy of the affidavit of service as soon as you can. And in your answer you would put as a defense improper service and demand a Traverse Hearing. And the Resolution Part judge will probably tell you that the Trial Part Judge will hear the Traverse Hearing. But definitely put it in your answer, or amend your answer if need be.
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Postby innocent1997 » Tue Oct 15, 2013 2:35 pm

this is an update for Tenant Net who has been kind enough to respond to my queries here last week.

Opposing side petitioner attorney adjourned the case on the basis that there were too much information in the written answer to petition.

In addition, based on the friendly advice by tenant net, I raised that the affidavit of service of process server was not in the court file. Therefore, it appears that the process server did not follow the protocol by having a copy of the affidavit of service for process serving filed with the court.

After such notification, the court clerk requested the petitioner's to file a "motion to reconstruct files". The Clerk explained that in such motion, I should be receiving in mail the affidavit of service by the process server.

My question is have anyone heard of "motion to reconstruct files" and how it works in this case? The fact that the process serve did not file the affidavit of service in court, does it count as negative against the process server during the traverse hearing?

Thanks
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Postby TenantNet » Tue Oct 15, 2013 3:10 pm

One of our tenant attorneys tells us:

"Sounds like baloney. The clerk should not be participating in the case. A file is reconstructed when it is completely lost, not when an affidavit of service was not filed. The tenant should vigorously object to the scheme of LL filing a late affidavit of service -- and presumably having it considered timely filed -- under the guise of "reconstructing" the file."

Some judges improperly allow the late filing of process server's affidavits of service. In all honesty, they do this because they are lazy.

"There were too much information in the written answer to petition." What the heck is that all about? That's not a proper ground for seeking an adjournment. And yes, cases are routinely adjourned the first time on. But still, that's baloney.

"The fact that the process server did not file the affidavit of service in court, does it count as negative against the process server during the traverse hearing?"

Yes, but bring it up. This can be used to question the process server's credibility.
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Postby innocent1997 » Sat Oct 19, 2013 7:27 am

Thanks for your valuable pointers, I will surely apply them when the times come.

As the legal proceeding is pending, the landlord and its agent is harassing me verbally in past few days (trying aggressively, such as constantly talking to my family, to enter the apartment for inspection etc. while the only reason that they tried to enter is probably to mitigate our answers to the petition prior to court date).

Two questions:

1. Is there any law that prohibits landlord from directly harassing/contacting the tenant while it is undergoing eviction case hearing in the court?

2. The landlord skipped its own attorney by contacting us. However, in the previous letter from landlord lawyers, they specifically asked us to direct any question/inquiries to the lawyers directly. Now, the landlord is contacting us without going through their own attorney, isn't this a double standard that the landlord is creating? I still plan to contact the landlord's attorney directly without contacting the landlord so my rights are protected by law.
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Postby Emeraldstar » Sat Oct 19, 2013 1:27 pm

Hi All
I'll let those more knowledgable handle the legal questions.
Just a thought on my part, as long as your part of the conversation, in NY one can record the conversation without the knowledge of the other speaker. Your involvement is key so one can't accuse you of evesdropping. Search the web. Many of the recorders are dirt cheap & small.
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Postby innocent1997 » Mon Oct 21, 2013 11:26 am

Thank you Emeraldstar for your insights.
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Postby innocent1997 » Thu Dec 05, 2013 2:22 pm

Hi all,

lost the traverse. not sure why I lost despite numerous errors pointed out to the judge about the process serving process. In any events, will get the written decision in mail and will share any meaningful pointers with fellow tenants here.

anyhow, preparing for the actual case, I have few questions.

(1) Since the actual trial of the case facts have not started yet, if I like the landlord to produce documents such as landlord's alleged complaints letters by other neighbors against me. Do I have to request a subponea? or do I file some other forms since landlord is the direct plaintiff?

(2) Is the traverse judge usually different from the actual judge? reason is we suspect of bias of the traverse judge favoring the landlord.

(3) regarding the loss of traverse hearing, I don't plan to appeal as it is not worthwhile from time and energy. however, for justice's sake, I plan to make a complaint. As I attribute the loss of traverse due to a possible court mistake to misplace the affidavit of service. In the first hearing, the court attorney indicated that the affidavit of service was not filed, and it would require motion to reconstruct documents. However, in the traverse hearing, the affidavit of service "miraculously" appeared with information that I never had a chance to review prior to the traverse hearing date. The judge just dismissed my complaint on the spot about the mix-up. Had I have enough information ahead of time, the outcome would have significantly been different. In fact, after the traverse, I looked up the process server's credential on Department of consumer affairs website, and found that he was disciplined previously for not serving properly. I would definitely have brought up this during the traverse had I have the information prior to traverse. Question is if I file a complaint against the court about the mix-up of affidavit of service, will the court be more biased against me in the real trial?
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Postby TenantNet » Thu Dec 05, 2013 2:48 pm

Who was the judge (and what borough)? There are some judges out there who will rule against unrepresented tenants no matter the merits of the case or motion.

We can't give you a complete lesson on how to handle a case. We do have information on the court section of this site, and also see http://www.nycourts.gov/

There are things you can do, i.e., file a Bill of Particulars (http://www.nycourts.gov/courts/nyc/civi ... lars.shtml)

or a Notice to Admit, or a Subpoena

You can also think about conducting Discovery, which is complex and involved, and not automatic in Housing Court. You would have to ask the court's permission for Discovery. Subpoenas also need the court's permission.

I do not know if judges who conduct traverses can also be the trial judge.
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re:

Postby innocent1997 » Thu Dec 05, 2013 9:47 pm

just for sharing for benefits of fellow tenants

just read the decision in court on the traverse, the written decision did not mention anything about the affidavit of service mix up by court at all. It appears judge cherry picked what to say in the decision to cover up critical mistakes made by court.

Also, when I reviewed the file again, the affidavit of service is not available again. Exhibits of the case also are not available. It just seems too much coincidence with the court documents.

i.e.
sequence 1: Affidavit of service allegedly not filed during first hearing, and both court attorney & petitioner attorney agreed a motion to reconstruct is necessary prior to the date of traverse

sequence 2: affidavit of service by process server miraculously appeared during date of traverse giving no time for me to prepare

sequence 3: affidavit of service by process server is not available again in the file when I go pick up the decision today.
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Postby TenantNet » Thu Dec 05, 2013 10:03 pm

Did you lose your SHIFT key?
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