End of lease/Super changed the locks - PART III

[Angela]

I never thought that I would have to post a continuation.

To make it short: My lease for coop apartment has ended on September 30. For last 2 month (August and Sept) I used my 2 securuty deposits as my payments. I notified the management and lady from management said that it was fine. We moved out on August 24, but still have some staff in the apartment. In the middle of September super changes the locks and refuse to give us the key, claiming that we did not pay for 2 month. We called the police and police made super to give us new key to our apartment. We moved what is left, clean apartment, made pictures and record everything and returned key to the super on September 29 (1 day before lease expired).

Yesterday I received a card from Civil Court - Housing Part, saying that a non-paying proceeding has beed brought agains you. You must appear in court and answer to the landlord's claim.

I do not know what to do. We do not live in the apartment anymore and I think it is rented already. What they can do - Evict us????

Manager threatened to sue me for every scratch on the doorknob. Can this court request be for damages, but I understand they have to send me a letter claiming some money for damages and if I refuse to pay sue us, but I did not receive anything regarding damages.

I will be really appreciated if somebody can suggest anything to me,

Thanks you very much, ANgela.

[consigliere]

When was the post card mailed by the housing court? If it was mailed just a few days ago, the landlord allegedly served you with court papers after your lease expired and after you moved out.
 
Your landlord had no right to bring a non-payment proceeding against you when you are not legally or physically in possession of the apartment. The housing court lacks jurisdiction.
 
If you don't answer, the housing court will probably enter a default judgment against you, (a) for possession of the apartment, (b) for the two months' rent, (c) for court costs, and (d) possibly for the landlord's attorneys' fees.
 
Go the housing court clerk's office to put in an answer. Check to see when and how the landlord's papers were allegedly served and when they were filed with the housing court.
 
Tell the clerk (1) your lease ended on September 30th and you moved out on September 29th, (2) you did not receive the legal papers from the landlord, and (3) the managing agent said you could use the two months' security deposit to pay the last two months' rent.
 
The clerk will write this information on an answer form. Make sure all three defenses are written on the answer form. The clerk will also set a court date.
 
When you return to court on the date set by the clerk, the landlord's attorney and the court's attorney will probably try to get you to enter into a stipulation to settle the case. Unless the stipulation provides that you owe nothing to the landlord, don't sign it. Insist on appearing before the judge, who should dismiss the case for lack of jurisdiction.
 
Tell the landlord's attorney you have photographs and video of the good condition in which you left the apartment, and advise the attorney to have the landlord sue you in civil court or commercial small claims court, if the landlord believes there are actual damages to the apartment -- not just reasonable wear and tear.
 

[lappert]

Here the Housing Court lacks jurisdiction as you do not have possession (depends on when the case was commenced and what steps you took to give up possession - sounds like you did). The answer should include a motion for summary judgment (for lack of jurisdiction). THe LL can (and should if there's merit) bring a plenary case in Civil Court for whatever damages he feels intitled to claim -- back rent, damages, etc. Your answer would be there's no damages (your photos) and the security deposit being used in lieu of rent. Argue all of this in the alternative if the motion is not granted. Housing Court can award possession (the primary goal of being in housing court), but can also award damages. But without possession it has no jurisdiction. THe Petition should state a) you have possession and b) there's a lease. These are predicate conditions the LL must assert in order for the court to acquire jurisdiction.

[consigliere]

Fred is correct that you could bring a motion, instead of filing an answer, to dismiss the case, based on the housing court's lack of jurisdiction.
 
You could talk to the pro se attorney in the housing court clerk's office, to learn how to bring a motion to dismiss. However, as a practical matter, having the clerk write all three defenses on the answer form is easier and probably just as effective as a motion to dismiss.
 
A motion for summary judgment can be brought only after you enter an answer.
 

[Angela]

Thanks to everyone who posted a reply for my problem. I am going to the court today to see the clerk. The card that I received was mailed on October 11, 2002. I do not know how fast they send those cards after the claim was maid. I am going to find out at the court clerk's office when landlord filed a claim (hopefully they did it after the lease expires). I printed your replies to use when I will be at the court. I will post what I find out.

Thanks again, Angela.