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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 Cazmia » Fri Jun 29, 2018 9:14 pm

Thank you.

Yes, we had a pre conference and then a subsequent genuine hearing that was recorded onto a number of CDs by the ALJ. Being the Tenant's Association President, I was provided a full transcript of the hearing by our attorneys at UJ.

The tenants are asking if they are needed again; they are interested in being a part of this, so I have scheduled a day off of work to visit DHCR (and the court to try to intervene). I have texted our attorney for advice and hopefully she will have some thoughts on this as well.

I also have to return RS leases that the owner provided to the entire building. We must decline them, because they were not sent with the necessary RS riders and because the legal rents have not been established by the rent overcharge/ administration unit at DHCR.

Lots to do, and all around a full time job..(sighs)

We also received a letter from DHCR regarding the rent overcharges, because the owner sent them a communication and I must reply to that, too, within 21 days. I've already drafted the letters to DHCR and the lease letters to the landlord.

What we feel is that this case meets the prerequisite of fraud for Grimm, and the building's rent should be frozen at the rent it was when 6 units were first discovered 20 years ago. This may be a hard sell, but I feel multiple policy statements support just that interpretation of the Law.
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Re: LL DENIES RS

Postby TenantNet » Fri Jun 29, 2018 9:39 pm

An A78 is an appeal, not a trial, and it's based on the record of the underlying case. The only way the tenants might need to testify again is if they remand it. Of course they might just agree to go on the old testimony. It probably would depend on the reason for the remand.

Do you still have your attys? They can tell you how all this works. Yes, I'm skipping over a lot of details here - I haven't done this for many years.

That DHCR didn't set the rents might be the reason why the LL appealed ... and might be a reason for a remand. But make sure the remand considers ONLY that reason. It must be in the judge's decision/order or a stip.

The first thing you MUST do is call DHCR Legal if you haven't already and talk to the attorney who has been assigned the case. Going to DHCR will probably be a waste of time.

From DHCR you will want a) their consent to your intervention (they won't say no), and b) copies of the LL's papers. You MUST get the papers filed by the LL to see what the appeal is all about. You also might be able to get the papers from the court.

Also call the LL's attorney and ask his/her consent to intervene. Send them a stip where they agree and ask them to sign and return it. They might say no, then you need to make a motion.

Prepare you papers - better to have a lawyer do it if you don't have the experience. Serve the papers on all parties (check to see if the NYS AG's office also needs copies), then submit to court with an affidavit of service. Keep track of all appearances and if the LL wants to reply to your answer or the DHCR answer. Do NOT rely on DHCR to be aggressive in defending this. If you are a party, then you can make your own demands.
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Re: LL DENIES RS

Postby Cazmia » Sat Jun 30, 2018 5:24 am

Is it necessary to get permission from the LL's lawyer? Or can I just request intervention from the court (after speaking with DHCR). The owner's lawyer are not a friendly bunch.

I found their petition at Bronx County Clerk and it was full of gross misrepresentations of what went on and some flat out lies. They twisted the words of the ALJ and made some pretty far fetched assumptions about the testimony of the tenants. Then continued to go on and on about how the DHCR purposely stacked the deck against them by putting the burden of evidence on the owner, when it should have been on the tenants.

He talks about how the sixth unit was a storage space and never proven to be anything else and States this as if it were fact, when we actually proved someone lived there with live testimony (tenant AND inspector), old court records of a Nonpayment case involving the sixth apartment being rented, rent control cards AND even DOB records stated a boiler for a six unit building was installed in 2008.

The tenants, burden or not, summoned as much evidence as we could find. It was the owner who chose not to call any witnesses during the hearing and, during the PAR, told DHCR he didn't need evidence, because the burden was on us. That was the owner's and his attorney's choice.

And since this was the owner's PAR (not the original AD proceeding) wasn't the burden on him as the Petitioner on the PAR?

The only thing I can't figure out is how we can get together with DHCR and figure out what evidence is being presented. I want to respect the courts when I come there to request papers to intervene and not be redundant or unprofessional. I don't have legal knowledge like that.

I want the ALJ's 85 page order presented (or is that automatically included on the A78, because it doesn't look like the owner's lawyer included with his "petition of lies" ?).

The ALJ encompasses every single argument we had, supported by case precedent and her own administrative interpretations and it is extensive.

Should I assume this document, and anything in the record, will be seen or does it have to be presented by DHCR while it is defending?

If that were the case, I'd say we should be joined as a Defendant in the A78, but don't really need to present evidence of our own accord...
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Re: LL DENIES RS

Postby TenantNet » Sat Jun 30, 2018 6:59 am

First, to clarify, I talk about remand because it might happen, it's possible. That's not to say it will happen. That depends on how vigorous you and the DHCR defend the PAR decision.

You ask the LL atty if they will consent to your intervention in order to avoid making a motion. The judge would probably grant it, so if the LL opposes, they are just being jerks. You send them a blank stip asking them to consent. They will or they won't. If they won't, then make a motion to intervene.

Your lawyers will know how to do this.

When you move to intervene you will also have to submit your proposed answer to the petition where you argue against the LL's appeal. You point out all the misstated facts and argue the law. Most judges give pro se tenants some latitude, but the last thing you want to do is rant and rave. Again, get a lawyer to do this.

I can't get into whose burden things are/were as I really don't know the case ... and burden involves legal issues beyond my pay grade. But just argue the facts and argue the law.

DHCR should submit the entire record of the case below to the court. It's called "the return" and should have every piece of paper from the PAR and below. If not, you should point that out and include what was omitted -- but only if it's really relevant.

The ALJ makes a recommendation (not the order) and DHCR will act upon the ALJ's recommendation ... usually they accept it. But as a political organization, there are times where DHCR will ignore the ALJ (usually to the detriment of tenants).

But understand that some judges in Supreme court are a) biased, b) lazy or c) ignorant of RS law. Some will dismiss a case because they don't want to deal with it.

Keep remembering that this is an appeal, not a trial. The LL raises questions on his appeal and you need to shoot them down.

OK, so this has dragged on for 7 pages (it might be the longest thread on the forum). So go call your lawyers and intervene.
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Re: LL DENIES RS

Postby Cazmia » Thu Jul 05, 2018 8:14 pm

Received official contact from DHCR advising us of our right to take part with their attorney's number and faxed it to UJ. It mentions that the Commissioner will appear. Attorneys at UJ haven't answered yet, but with the Holiday and all I will give it some time.
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Re: LL DENIES RS

Postby Cazmia » Sun Jul 15, 2018 4:11 pm

Since I've gone in person to UJ and DHCR and still haven't heard anything in terms of joining the Article 78, I may have to go to the court on my own and file a motion to intervene (something I did not want to do unless I received clear and informed advise from those parties).

I'm going to assume we have 60 days from the date the Petition was filed (not verified)...

I have the progress of the case on my screen and there hasn't been anything past the petition, motion and RJI from the owner. No response that I can see from DHCR, but an appearance on the motion in August at which time DHCR may address the motion. Of course, I don't know how special proceedings work, so I don't really know what they intend to present. I know the Comissioner will appear from the letter I was sent.

You said in an earlier post that I should knock down the petitioner's various arguments one at a time when I fill out the motion for the tenants to intervene.

My question is, wouldn't that be redundant, because I'd probably be reiterating any defense DHCR will have the day the motion is heard?
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Re: LL DENIES RS

Postby TenantNet » Sun Jul 15, 2018 4:23 pm

One doesn't "join with" other respondents in an A78 proceeding. You intervene. They will not do it for you; you have to do it yourself. DHCR will most likely consent to intervention, but the LL might object. However in my experience the courts will grant the intervention request.

You have to make a motion that is served on the other parties and submitted to the court. In the intervention papers you have to include the papers and exhibits you would normally submit that defends your PAR win and opposes the LL's A78 (and all the facts, arguments and reasoning behind it).

The DHCR answer that they will submit in opposition to the LL's petition should have the "return" included - that is the record of all papers submitted below.

On paper DHCR often does a pro-forma opposition, but in court - usually for oral arguments - they often agree to a remand. That's why you should be in contact with the DHCR attorney and let him/her know how important it is to maintain the underlying decision.

This is something you or your attorney has to do. It's complex and a beginner really can't do it themselves. You can try, and a judge might even allow it, but better to have skilled hands.
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Re: LL DENIES RS

Postby Cazmia » Sun Jul 15, 2018 4:41 pm

Thank you, I emailed our lawyers again. I don't want to go in person again and lose another day's work to ask about the same thing.

I'll try to prepare our defense myself, just in case. All I can do is my best if I don't hear from anyone.
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Re: LL DENIES RS

Postby TenantNet » Sun Jul 15, 2018 5:48 pm

If you Google around, you will find all sorts of stuff about A78s. For example:

http://onlineresources.wnylc.net/FairHe ... 21-09_.pdf

https://www.nycourts.gov/courts/12jd/br ... eeding.pdf

http://jlm.law.columbia.edu/files/2017/ ... Ch.-22.pdf

https://www.laborlawfirm.org/article-78 ... dings.html

http://www.sheerinlaw.com/pdf/sheerinla ... _eBook.pdf

>>>> http://www.farrellfritz.com/wp-content/ ... le-354.pdf discusses "necessary parties"

https://law.justia.com/cases/new-york/o ... 20424.html

https://www.hmgdjlaw.com/Major-Cases/Re ... newa1l.pdf

Of course your papers should say why the PAR decision was correct and why the LLs argument is bogus. Look for papers that others have submitted. And make sure your papers explicitly ask the court to deny the petition.

Go on the SCROLL system - http://iapps.courts.state.ny.us/iscroll/ - look for cases where DHCR is the defendant. Put the word "DHCR" in the search box for defendant, but you may have to try other names as well.

and in newer cases the actual papers will be available as PDF files. Look for Answers and Memos of Law submitted by DHCR (or tenant groups) opposing the LL challenge and Motions to Intervene.

Another way of looking them up is to go to SCROLL. Then on the top left click where it says Case Type Search. Under Case Type, choose Article 78 and you'll see a bunch. You can click on each index number and up pops a list of all documents submitted. Some will be available to see, but others won't. But also look for a line that says "CLICK HERE FOR A LIST OF AVAILABLE IMAGES" and you might get lucky.

And even then, in some cases, once I've seen the docket number, I can then search for that docket in the ECOURTS system (a separate system).

But be aware that a REQUEST FOR JUDICIAL INTERVENTION (or RJI) is not the tenants seeking to intervene. The RJI is the LLs plea to intervene with the courts.

This is plenty to chew on ... which is why you need a lawyer to do it for you.
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Re: LL DENIES RS

Postby Cazmia » Mon Aug 27, 2018 12:41 pm

Just an update. We did get Urban Justice to agree to help us with our motion to intervene. However, after contacting them like crazy for updates, they did not write up the motion, but intend to come in to argue orally to have us intervene. I would have worked on the written motion myself, at least to give them something to work with, but I did not know this would happen.

I keep checking the website and I see no answer papers from DHCR in opposition, either. Now the motion is marked "fully submitted." When I Googled this, it said that meant the judge had all he needs and we need to wait for a decision..does this mean it is going unchallenged?

There is an appearance date tomorrow for the "fully submitted" motion and now i am very unnerved.

I don't want to lose my home, because no one answered. I would've happily worked on my own motion to intervene, but I put it in our lawyers hands and they will be there in person..We also did receive a letter from DHCR saying the Commissioner would appear as well, but where are the answers on record at the website? Bronx County and Supreme both only still show the owners A78 motion...
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Re: LL DENIES RS

Postby TenantNet » Mon Aug 27, 2018 2:19 pm

In my experience any motion to intervene has to be done on paper, and has to include your proposed pleadings (i.e., what would you say if you are given permission to intervene). I have never heard of making such a motion orally as such cases are "submitted."

But understand I'm not an attorney and I don't practice in the courts, so maybe they might know something that I don't. Even so, I would ask them to explain how they propose going about this.

Understand also that once your motion is submitted, the other parties will be given time to respond (consent or oppose). DHCR usually consents. Have you checked on Ecourts (https://iapps.courts.state.ny.us/webcivil/ecourtsMain) or SCROLL (http://iapps.courts.state.ny.us/iscroll/)?

Usually decisions are just mailed to the parties.

If there is an appearance, I would show up. You can't take that chance. I would also check with your lawyers.

I don't recall, did you/can you send us the index number of the supreme ct case by private mail?
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Re: LL DENIES RS

Postby Cazmia » Mon Aug 27, 2018 3:23 pm

Yes, I have checked eCourts. That's what has me unnerved. I see the owner's motion, and it is down as "fully submitted." However, I do not see any answer from DHCR.

I did check the 2 websites you mentioned and did not see the Return from DHCR there. No answer at all in writing from the Agency.

I am afraid that the case will be decided upon the owner's petition only for this reason.

Thank you very much. for the links, though. I actually use both Bronx County Clerk website and the iapps.courts websites frequently.

I don't mean to keep avoiding the index number question. As the Tenants Association President, I told the tenants Tenant Net has been very helpful and asked them if they would consent to me sending TN our index number. They would prefer to remain anonymous during the course of the case. However, I'll happily PM that info as soon as the case is over.
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Re: LL DENIES RS

Postby TenantNet » Mon Aug 27, 2018 4:02 pm

You can remain anonymous of course, but understand that means you won't get our opinion on specifics of the case. And we can't say or opine if your lawyers are doing the right thing without further information.
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Re: LL DENIES RS

Postby Cazmia » Fri Apr 26, 2019 3:10 pm

Although we are still being antagonized by a very bitter landlord, we are elated to announce that the Supreme Court decided in favor of DHCR and the tenants on the Article 78 earlier this month.

The landlord's petition is denied and the judge ordered the decision filed with the Appellate.

The landlord is employing other unscrupulous methods of trying to get rid of his rent stabilized tenants, so it is bitter sweet for us at this point in time. We are staying strong, armed with the hope of how far we were able to come. What was accomplished is historic.

All the fine judges we encountered live on in my mind as heroes.

I went from a hopeless tenant who was clueless about how the law could help me..to a student of Law, the President of a tenants association and an officially rent stabilized tenant, at last!

The ALJ knew our case would be " one for the books " and it was. The best compliment I received was that my answers were the "result of seasoned, legal knowledge" and I noticed so much of what I had studied and written in DHCR's own defense to the Article 78. I am truly honored.

The tenants decided that it would be best not to be enjoined in the Article 78. We allowed DHCR to defend its decision on its own. When I accessed DHCR's answer to the landlord's petition, I was in awe of the passion and power of their legal defense. It is an amazing read. I am lost in admiration.
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Re: LL DENIES RS

Postby TenantNet » Fri Apr 26, 2019 3:42 pm

Congrats. Can you email us a copy of the decision, or post it via Private Mail here? Or, if you have the docket number, I might be able to access it on the Supreme Ct. website (which borough are you?)

You say "the judge ordered the decision filed with the Appellate." What does that mean?

Normally, any party can appeal an A78 decision to the Appellate Division, and then to the NYS Court of Appeals. But the rules get complicated.

DHCR passion and power? That would be a miracle. It never happens.

You may have told us before, but who is your attorney?
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