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Number of days to respond to non-payment petiotion

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

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Number of days to respond to non-payment petiotion

Postby lizkin33 » Sun Mar 18, 2018 6:38 pm

Hello
I live in the rent stabilized apartment, received a non-payment petition from landlord's attorney, on Wednesday 03/14/18. It says on it that i have five days to answer.
Does this mean, five business days, or five calendar days?

Thank you
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Re: Number of days to respond to non-payment petiotion

Postby TenantNet » Sun Mar 18, 2018 7:30 pm

I would think to be safe use the smallest time frame ... 5 days.

However, in my experience, I've gone as long as 2 weeks before putting in an answer. That does not mean I am recommending that.

You also have to look at the type of service of the papers. Were they handed to you by the process server, given to some other adult in your household, or taped on your door. If the latter, then the papers have to be mailed to you by BOTH regular and certified mail. Service is not complete until that happens, and I would argue the 5 days starts then.
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Re: Number of days to respond to non-payment petiotion

Postby lizkin33 » Sun Mar 18, 2018 9:36 pm

Papers were personally served upon by a process server. What does the law, and/or case law say about this?
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Re: Number of days to respond to non-payment petiotion

Postby TenantNet » Sun Mar 18, 2018 10:31 pm

If they handed it to you, then I'd go with 5 days (not 5 biz days). Better be safe. As I said, I've stretched it out to 2 weeks, but that's up to you.

Go to the courthouse (Manhattan is 111 Centre St, 2nd floor) and put in an answer. You can put in the answer by the Court Clerk or you can serve your own answer (much more complicated).

The attys should have given you the lowdown on how to do that.
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Re: Number of days to respond to non-payment petiotion

Postby lizkin33 » Mon Mar 19, 2018 9:47 am

Thank you
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Re: Number of days to respond to non-payment petiotion

Postby TenantNet » Tue Mar 20, 2018 8:47 am

Few thoughts ... the court is supposed to send you a post card with the information about the case on it, more as a reminder, but it also recognizes that many landlords practice "sewer service" where the papers that are supposed to be served on the tenants are not, and instead just thrown away. That results in many tenants not knowing about the court case, in which they default.

A one-page answer by the court clerk is just a check list of your defenses, not all the details. You tell the clerk the reasons for not paying rent, i.e., you withheld because you had no heat, or whatever. So put together all your reasons. Check the Guides to Housing Court on this site, or on other sites. Once you put in the answer, the clerk will give you a date to return. That's your first appearance. In my experience, they have some flexibility (but not a lot) in giving out dates.

As we've discussed here, in many/most instances, once you make your first appearance, cases are usually adjourned for about a month or so. You first go to a resolution part (room) where you can negotiate with the landlord (or laugh at him if you have a good case). You can speak to the court attorney and in some instances make a motion and/or speak to a judge. That's not the trial judge, so don't start arguing all the details of your case. But if you have a sure-fire reason for asking that the case be dismissed (i.e., you paid rent for the months the LL is claiming and you show copies of cancelled checks and certified mail), such cases often go away.

You can also hire an attorney and have him/her put in an amended answer. And if you're sufficiently poor, the city has a new program that supplies attorneys for tenants. But that just started and details are hard to come by. You can check with the Pro Se attorney's office on the first floor (west side of building in Manhattan) and they might know about that.
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Re: Number of days to respond to non-payment petiotion

Postby lizkin33 » Tue May 15, 2018 3:36 pm

Just as you said, on my return case was adjourned to another date, which was today.

The LL attorney said they could "sever" part of the arrears, but said that they could come after me later for the amount severed so I didn't agree with it. So we got scheduled to go to trial on June 27.

I didn't know what "sever" means in legal terms at the time, but now think that maybe I should have agreed to that deal. In what situations does it make sense to agree to a deal involving "severing" a part of the arrears?

As I understand it now, they cannot under any circumstances file a new non-payment or even a holdover proceeding for the amount severed in this proceeding if I were to agree to such a deal, but could start another proceeding in civil court for the severed amount, at which point I could still use the defenses I have. Am I missing anything in regards to this "severing" deal? Any potential wording on the stipulation that I have to watch out for?
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Re: Number of days to respond to non-payment petiotion

Postby TenantNet » Tue May 15, 2018 3:52 pm

In this context, "sever" just means they will seek less back rent in this proceeding. They could theoretically start a new proceeding immediately seeking the rest of the rent.

I have not heard that language used, i.e., "sever" arrears. They can submit an amended petition seeking a lower amount of back rent. They might be able to ask the judge to "sever" a part of the rent from the amount sought, although I've never seen that. I suppose it depends on what language is used.

If you do it, or the court does it, try to get it done "with prejudice" meaning they can't come back for the severed portion later.

Aside from that, there is the doctrine of latches, where if the rent they are seeking is too old (often 90 days), the court could require the LL to refile in Civil or Supreme Court. That's harder for the LL to do.

Or there's the six year statute of limitations. If the back rent is 6+ years old, then you should be safe (at least most of the time).

Getting back to sever, it could mean they will "forgive" the back rent or a portion of it, but that usually means with prejudice. It doesn't make much sense to agree to a temporary forgiveness. Forgiveness often goes with a tenant agreeing to move out within a certain amount of time. Or, if a tenant has strong defenses (bad conditions, harassment, etc.), a LL could agree to an abatement in the rent sought (or a judge could order that).

If you wish to do it, you can contact the LL's lawyer and ask if that offer is still on the table. You say little about the underlying reasons for the court proceedings, so I can't opine if that makes sense or not. I would also contact a tenant attorney for a consultation and get their advice where you can give them the entire picture.

As for any stip in LL/T court, NEVER EVER EVER sign anything that contains the word "judgment" or "warrant."
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Re: Number of days to respond to non-payment petiotion

Postby lizkin33 » Tue May 15, 2018 4:42 pm

Thank you,

But now I'm confused again. The free legal attorney (Legal Aid Society i think) that was in court, as well as the court attorney for the self represented (that works for the court) both told me that "sever" means that they are forever foregoing the ability to collect that portion in housing court, but still maintain their right to bring another proceeding in civil court, or another court, BUT said proceeding would no longer put me in jeopardy of losing the apartment if I were not able to pay.

Could both these attorneys be wrong?
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Re: Number of days to respond to non-payment petiotion

Postby TenantNet » Tue May 15, 2018 5:33 pm

Look, we're not attorneys and do not "practice" in court. We don't represent anyone. But I've been in court many times with my LL over the years. Also, I've not seen the underlying papers or issues in this proceeding.

As to a legal meaning of the word "sever," I'm not sure of the implications. It might mean - like laches - that a LL would have to commence a new proceeding in Civil or Supreme Court, not Housing Court. (of course they would try and the tenant would need to raise Laches as a defense.

In Housing Court, a non-pay or holdover proceeding means the LL is seeking BOTH any back rent AND possession. It's entirely possible, usually in Civil Court, for a LL to seek back rent, but not possession. It depends on the circumstances. In such a case, if you win, you don't get evicted, but they can seek to satisfy any judgment through other means (like going after your paycheck).
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Re: Number of days to respond to non-payment petiotion

Postby lizkin33 » Tue May 15, 2018 11:02 pm

"Aside from that, there is the doctrine of latches, where if the rent they are seeking is too old (often 90 days), the court could require the LL to refile in Civil or Supreme Court. That's harder for the LL to do."

Really?

The rent they are seeking is from January of 2017 till now.

So I could ask the court that I should only be accountable for the last 3 months?

And the rest they should seek in civil court?

In my answer to their petition I told the clerk about warranty of habitability defense and a few others, but did not include latches as a defense. How do I now modify my answer to include latches as well? Do I file an order to show cause for this? Will the LL attorney have to come to court for this and will this happen before the trial date?
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Re: Number of days to respond to non-payment petiotion

Postby TenantNet » Wed May 16, 2018 12:24 am

Yes, really.

Not the last 3 months from now, but from when they filed the case.

Have you not paid the LL, or paid into court, or into escrow any of the rent for the last 17 months? If not, then you've got troubles.

You would have to add laches as a defense in your answer. It might be too late to do that. But you can ask the court. Do some research on laches. I do not know if you can seek a ruling on laches by motion or OSC.

Laches is a double-edge sword. Filing in Civil Court might be harder for the LL, but also might be harder for the tenant (and might include a plea for possession as well). Civil court allows other things like discovery. Unless you know what you're doing (and I suspect you don't), then it might come back to bite you.
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Re: Number of days to respond to non-payment petiotion

Postby lizkin33 » Thu May 17, 2018 3:16 pm

Why is latches a double edge sword?

Also, reading the affidavit of service for the 3 day Notice and 30 day debtor notice they served me, it has a description of someone who doesn't live in my apartment, that they say accepted papers.

Does this mean that I can also try to add improper service to my defense? They did mail me a copy of the 3 day Notice and 30 day debtor notice though.

Is it too late to do that now that we already had a conference in court?
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Re: Number of days to respond to non-payment petiotion

Postby TenantNet » Thu May 17, 2018 4:09 pm

On bad service you should put in a demand for a Traverse, where you can challenge the service.

It depends on what is alleged in the affidavit. If they claim it was given to someone at the residence who is not you, and there is no one with that description at the residence, then that might be bad service. Look at the requirements for service. IF the court allows a Traverse hearing, it's like a mini-trial where the process server testifies and the tenant tries to undermine that testimony.
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