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Motion for Discovery in NYC

NYC Housing Court Practice/Procedures

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Motion for Discovery in NYC

Postby nycrenteristic » Tue Jun 25, 2019 6:01 pm

Hi all - Hope this is the right forum.

First question)

The landlord at the old apartment I lived in in Brooklyn is suing me in Civil Court for back rent.
I showed up court for the calendar call and now the next step per the judge is to meet and "Conference". (A lawyer from Claro assisted in the process). In the meantime there a motion for discovery where I send to the other side's attorney all my docs and vice versa.

Is there a precise way/method/template I should be following to actually send all my documents to the other side attorney?

Second question) The Discovery order for the documents is for 90 days after I went to court. That's exactly the same day as the Conference. Is that a mistake? Wouldn't the both sides need the documents ahead of the Conference?

Thank you
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Re: Motion for Discovery in NYC

Postby TenantNet » Tue Jun 25, 2019 6:36 pm

We moved this question to the NYC Housing Court forum.

I presume you are not in occupancy, so that is why you would be in Civil or Supreme Court, and the LL is not seeking possession, just past rent. Housing Court is only for those in possession of their apartment.

You say he's seeking back rent? How much approximately? How many months? Did you leave before the lease then in effect had expired? Do you know what steps the LL took to mitigate his economic loss once you moved out? Did you take any steps to mitigate the LL's loss, i.e., did you seek a sublet or a new tenant for assignment?

Were you rent stabilized?
What is Claro?
Discovery isn't automatically where both sides send information. As far as I know, you would seek the LL's information separately. But to be honest (we're not lawyers), we're not how it works in Civil Court. I do know that Discovery in Civil Court is as-of-right.

Method? What form do you have the documents? Paper? electronic? You could email him pdf scans if he's willing to accept that. Saves printing and postage. Many years ago I filled a discovery request by burning documents on a CD-ROM. Got no objection on that.

You can also check with the court attorney to see if they have rules on that. They might be willing to help you with technical questions like that.

As for the date, I don't know if that matters. A conference is just that. It's not a trial. That comes later.

Having said all that, and without your explanation to my questions, the law has changed:

44 § 4. The real property law is amended by adding a new section 227-e to
45 read as follows:
46 § 227-e. Landlord duty to mitigate damages. In any lease or rental
47 agreement, excluding any real estate purchase contract defined in para-
48 graphs (a), (c) and (d) of subdivision four of section four hundred
49 sixty-one of this chapter, covering premises occupied for dwelling
50 purposes, if a tenant vacates a premises in violation of the terms of
51 the lease, the landlord shall, in good faith and according to the land-
52 lord's resources and abilities, take reasonable and customary actions to
53 rent the premises at fair market value or at the rate agreed to during
54 the term of the tenancy, whichever is lower. If the landlord rents the
55 premises at fair market value or at the rate agreed to during the term
56 of the tenancy, the new tenant's lease shall, once in effect, terminate

S. 6458 45 A. 8281

1 the previous tenant's lease and mitigate damages otherwise recoverable
2 against the previous tenant because of such tenant's vacating the prem-
3 ises. The burden of proof shall be on the party seeking to recover
4 damages. Any provision in a lease that exempts a landlord's duty to
5 mitigate damages under this section shall be void as contrary to public
6 policy.


and

§ 29. This act shall take effect immediately and shall apply to
50 actions and proceedings commenced on or after such effective date;
51 provided, however, that sections three, six and seven shall take effect
52 on the one hundred twentieth day after this act shall have become a law;
53 provided, further, that section twenty-five of this act shall take
54 effect on the thirtieth day after this act shall have become a law and
55 shall apply to any lease or rental agreement or renewal of a lease or
56 rental agreement entered into on or after such date; and, provided,

S. 6458 58 A. 8281

1 further, section five of this act shall take effect on the thirtieth day
2 after this act shall have become a law.


So this last provision took effect when the law was signed into law. I believe that as June 14th.

Now, have you tried to get the case dismissed on any number of reasons like bad service? or Failure to State a Cause of Action? All that would require is a motion on your part and a good reason the court would buy into.

I strongly suggest you get an attorney, or consult with one to see if you can get the case kicked out. That would require the LL to start all over, any a new case would probably be covered by the new law.

I can tell you that LLs often file these suits expecting the former tenant will not show up, or will just go along. Throw enough shit on the wall and see what sticks.

You might win if and when you fight, strongly.
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Re: Motion for Discovery in NYC

Postby nycrenteristic » Wed Jun 26, 2019 9:03 pm

>>>Hi and thank you! My replies in ">>>"
We moved this question to the NYC Housing Court forum.

I presume you are not in occupancy, so that is why you would be in Civil or Supreme Court, and the LL is not seeking possession, just past rent. Housing Court is only for those in possession of their apartment.
>>Correct.

You say he's seeking back rent?
>>Yes
How much approximately?

>>$5k
How many months?

>>~2.5
Did you leave before the lease then in effect had expired?

>>Yes, but we moved out because of an unresolved-many-year-cock-roach infestation (still going on today)

Do you know what steps the LL took to mitigate his economic loss once you moved out?
>>Seems like they rented the apartment roughly 2 months after we moved out.

Did you take any steps to mitigate the LL's loss, i.e., did you seek a sublet or a new tenant for assignment?
>>No, we moved out b/c we believe this was a breach of the warranty of habitability. We could not stick the atrocity back on another innocent NYer.

Were you rent stabilized?
>>Yes

What is Claro?
>>http://www.claronyc.org/claronyc/Brooklyn/Brooklyn.html
>>Basically a free lawyer

Discovery isn't automatically where both sides send information. As far as I know, you would seek the LL's information separately. But to be honest (we're not lawyers), we're not how it works in Civil Court. I do know that Discovery in Civil Court is as-of-right.

Method? What form do you have the documents? Paper? electronic? You could email him pdf scans if he's willing to accept that. Saves printing and postage. Many years ago I filled a discovery request by burning documents on a CD-ROM. Got no objection on that.
>>I have a stack of photos printed and saved online. Ditto for all my receipts and log files.

You can also check with the court attorney to see if they have rules on that. They might be willing to help you with technical questions like that.
>>Yes, I intend to. It seems like if one responds to an interrogatory, you list out your response item by item. But this seems different. Just looking to do it the right way.

As for the date, I don't know if that matters. A conference is just that. It's not a trial. That comes later.
>>Thanks

So this last provision took effect when the law was signed into law. I believe that as June 14th.
>>Thanks!

Now, have you tried to get the case dismissed on any number of reasons like bad service? or Failure to State a Cause of Action? All that would require is a motion on your part and a good reason the court would buy into.
>>Not yet but I believe they served me incorrectly:
>> First Summons - was hand delivered to our 'doorman' but they were allowed unfettered access to my apt door (The super said 'Go right ahead')

>> Second Summons was sent USPS (not return receipt)

>> I thought they needed to do 2 in person attempts before mailing the summons.

>> The summons literally has the *wrong address* where I lived on it. It's close but different.
>> I have photos of both the front doors of both apartments showing they are different. And my electric
>> bill w/the proper address.

I strongly suggest you get an attorney, or consult with one to see if you can get the case kicked out. That would require the LL to start all over, any a new case would probably be covered by the new law.
>>Acknowledged. The lawyer at claro did not seem to think much about the incorrect address. BUT you have a very good point and I will pursue this.

I can tell you that LLs often file these suits expecting the former tenant will not show up, or will just go along. Throw enough shit on the wall and see what sticks.
>>Yeap. I have a lot of docs (and recorded messages of me leaving the mgmt a message about the situation). They ignored me on day one and refused to clean up the mess I moved into and ignored me on the way out as well. I can easily prove all this. They can't.

You might win if and when you fight, strongly.
>>>Thanks!!
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Re: Motion for Discovery in NYC

Postby TenantNet » Wed Jun 26, 2019 9:59 pm

Vermin infestation. Do you have proof? Photos, violations placed by inspectors, etc? Seems that would be your defense (and counterclaim) in any proceeding.

The minute they re-rent the place for the same or higher rent, then the liability is no longer yours. Two months does seem a reasonable time to place ads or do whatever is done these days to place a listing. Of course that doesn't change your defense.

So is Claro just a person who gives advice, or do they represent you?

Can't help you with interrogatories - never have done them.

What kind of service did they provide? You should put that on your answer, or amend the answer and ask for a Traverse where they have to prove proper service.

First summons? Do you mean first attempt at service? I don't think there is a first or second summons, but there are first and second attempts at service. At least in housing court - and probably in civil as well, they have to try twice at personal service (and within certain hours), then on the third time they can affix it to your door (usually by tape), than within 24 hours they must mail it to you by BOTH regular and certified mail.

Get your court file and look for the affidavit of service in the file. See what the dates are when things happen. And separate from what actually happened, see what they allege happened. If they were able to get to your door, they have to state that.

Look for photos of your door and GPS data.

Wrong address? Well to me that's a strong reason to get it kicked out. Did they send it by certified mail? Look at the affidavit for the USPS tracking number and see if that has the wrong address.
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Re: Motion for Discovery in NYC

Postby nycrenteristic » Sun Jun 30, 2019 4:38 pm

Vermin infestation. Do you have proof? Photos, violations placed by inspectors, etc? Seems that would be your defense (and counterclaim) in any proceeding.

>> Yes I have lots of photos and videos at the time of my move in (9/2013) and move out and before move out (6/2017).
>> I needed to hire a professional cleaner to scrub the kitchen, and scrape the shelves of the >> insect remains stuck on the shelving when i moved in. I needed to go to Home Depot to purchase wood and
>> paint them to recreate the shelves at a basic cleanliness level.
>> I have all the receipts
>> The office denied any help in cleaning or paying for the shelving repairs and refused to help
>> at all

>>I have the call I recorded w/the office telling them the problem and that we're moving out.
>>and also recorded the VM to the maintenance guy where I stated the problem.
>>Never called me back.

The minute they re-rent the place for the same or higher rent, then the liability is no longer yours. Two months does seem a reasonable time to place ads or do whatever is done these days to place a listing. Of course that doesn't change your defense.

So is Claro just a person who gives advice, or do they

>> they represent you for free but they're not for the length of the case - you have to seek
>> their help every time you have a question or concern in person.
>> They are as helpful as they can be while trying to help as many as they can.
>> The lawyer from Claro asked to have a conference for me.

Can't help you with interrogatories - never have done them.
>>NP

What kind of service did they provide? You should put that on your answer, or amend the answer and ask for a Traverse where they have to prove proper service.

>> From my perspective they have provided substitute service to the porter /
>> doorman. I received a copy of the summons via USPS 8 days later.
>> The doorman/porter said that the super was also with him and they allowed unfettered
>> access to go up to my apartment to try to hand-deliver - however they made the decision >> to leave it with the doorman on the first try

>>The doorman/porter definitely opens the door for me if he sees me and sits at a desk to give out packages etc....
>> They left it w/him. He gave it to my girlfriend and she gave it to me.

>>Seems like the doorman is NOT OK though:
https://www.nycourts.gov/CourtHelp/Goin ... uted.shtml
It is o.k. to serve respondent’s babysitter, but it’s not o.k. to serve a neighbor or doorman.


First summons? Do you mean first attempt at service? I don't think there is a first or second summons, but there are first and second attempts at service. At least in housing court - and probably in civil as well, they have to try twice at personal service (and within certain hours), then on the third time they can affix it to your door (usually by tape), than within 24 hours they must mail it to you by BOTH regular and certified mail.
>>Yes, you are correct.

Get your court file and look for the affidavit of service in the file. See what the dates are when things happen. And separate from what actually happened, see what they allege happened. If they were able to get to your door, they have to state that.

>> Roger that and than you. I don’t see any method how to look up the affidavit of service
>> online. Perhaps I need to go the court house to see it. I’m not even sure if they filed one
>> yet.

Look for photos of your door and GPS data.
>>done and done. I have pics of my address front door the other address's as well.

Wrong address? Well to me that's a strong reason to get it kicked out. Did they send it by certified mail? Look at the affidavit for the USPS tracking number and see if that has the wrong address.

>>They sent it via USPS w/o any tracking
>> It seems they were supposed to send via regular mail, which usps is:
https://www.nycourts.gov/CourtHelp/Goin ... ings.shtml

>> Indeed. The summons was sent to my *current address* but it states I lived in at address >> where I literally never did. And the claim is made on that incorrect address.
>>2 completely separate and real address
>> I.E (for example "110 main street apt 5", vs "120 main street apt 5"

>>I went back a week ago and interviewed the whole "line" 2M through 7M (horizontal column of tentants).
>> 2M is - 2 years later - currently having a *big problem* w/CRs - they hired an external (apart from the apt's exterminator - which only addresses bathroom/kitchen) to help them out.
>> Other's all dealing with it OK but absolutely had big issues before. They seem to come and >> go in horrible bursts of activity and then settle down. I told the office on day one they need >> to kill the nest address this

>>On day one the super admitted the M line has always had issues. He won't sign an affidavit
>> willingly but hopefully the case gets dismissed before compelling anyone to be a witness.
>>Thanks so much for responding.
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