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Affirmative Defenses to Nonpayment Petitions in New York: The Definitive Guide For NY Tenants
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Affirmative Defenses for Tenants in New York Nonpayment Cases

Using the Affirmative Defense of Improper Service to Defeat a Nonpayment Eviction in New York

New York Landlord Tenant Attorney


Name Change Law and Procedures

New York City Civil Court: Tenant's Guide To Nonpayment Cases

Tenant Information On Non-Payment Cases
Answering a Non-Payment Petition

This information is applicable only to Landlord-Tenant cases in the City of New York. In New York City, summary nonpayment proceedings are filed with the Civil Court of the City of New York. The Civil Court has a branch in each borough of the City. The procedures governing nonpayment proceedings in New York City differ from those applicable in the rest of the state. Thus, the information set forth below is applicable only to nonpayment case in New York City.

Before you can be legally evicted from your apartment/residence, the landlord must begin a case against you in Court (generally, in the Housing Part of the Civil Court of New York or in State Supreme Court). The rent must be demanded, (either in writing or orally) before the landlord can begin a case. Then you must be served with papers called a "Non-Payment Petition" and "Notice of Petition". Sometimes these papers are called a "dispossess". The law requires that a landlord strictly comply with all applicable laws, including but not limited to the summary proceeding statute, and all other housing laws. Failure by the landlord to comply with substantive and procedural laws can (and often does) lead to the dismissal of a landlord's non-payment proceeding.

Do not ignore any legal papers, notices, or postcards that come from the Court. Read them carefully. If you ignore these papers and do not go to Court, you may be evicted.

Answering the Non-Payment Petition


Carefully read your papers. The non-payment petition states that you should go to Court within 5 days to answer; it also states the address of the Court. Go immediately with your nonpayment petition to your borough housing Court and see the landlord/tenant clerk.

Be prepared to provide your Answer to the the Nonpayment Petition, with your affirmative defenses, to the Housing Court Clerk. If you have questions, speak to an experienced New York landlord tenant attorney for guidance regarding your legal rights. Because New York landlord tenant law is extremely complex, your chances of succeeding are far great if you are represented by an experienced lawyer. Once you have filed the form with the clerk, you must send a copy to your landlord or his/her attorney (if the landlord has one). Your answer is your chance to state your defenses and/or any counterclaims you may have. Most tenants choose to answer verbally. You should tell the clerk your answer and then he/she will check off your defenses and give you a copy, with the date, time, room number and which part of the housing court you will return to.

You might want to consider using the following questions as a guideline in determining answer.


Service

How did you receive your Court papers? Were you properly served as required by law? Proper service is achieved when:
  • Personal Service - You are hand delivered a copy of the petition (by someone who is 18 years old or older and not a party to the case) or
  • Substitute Service - Someone (of legal age), who lives in your apartment, is given the Petition at your address and you are sent copies by certified and regular mail or
  • Conspicuous Service - The Court papers are taped to, or slid under your door, followed by copies that are sent by certified and regular mail.
If you did not receive your court papers by any of the above methods you may have been served improperly. Be sure to tell the Clerk. Improper service can result in the dismissal of the landlord's petition.

Parties

  • Is your name spelled correctly in the Court papers?
  • Is there another person whose name should appear in the Court papers, i.e., a roommate or a spouse?
  • Is the person, corporation or company who has filed the case against you the owner of your building? If you are unsure who owns the building, you can get assistance at the Information Table.

Rent

  • Were you asked to pay the rent, either orally or in writing, before receiving Court papers?
  • Did the landlord refuse to take your rent?
  • Is the amount of rent being claimed by the landlord incorrect? The rent being claimed may be incorrect because it is not the legal registered rent. (This applies to rent stabilized and rent controlled apartments. To find out the legal registered rent or rent history for your apartment, you can contact the Division of Housing and Community Renewal in your borough.)
  • Is the monthly rent being claimed different from the amount in your lease?
  • Has the rent been partially or fully paid?

Apartment

  • Are there conditions in your apartment, which need repair or services that are not being provided? If this applies to your situation, you may wish to consider filing a counterclaim. In appropriate cases, you may be entitled to relief, including a rent abatement, compensatory damages, and punitive damages. You should also advise the court if the landlord has neglected to pay utility and/or fuel bills that the landlord is obligated to pay.
  • Are you receiving public assistance and there are Housing Code violations in your apartment or building?
  • Are you living in an illegal apartment? An illegal apartment is one in which the landlord does not have a valid Certificate of Occupancy from the Department of Buildings.

Other

  • Did you pay for repairs, utilities, or services that should have been provided by your landlord? If this occurred, you may wish to file a counterclaim. You may be entitled to compensation, and the landlord's nonpayment proceeding may be delayed (stayed) until the landlord pays such bills.
  • Has your personal property been damaged because your landlord failed to provide proper repairs or services?
  • Do you have any other reason(s) for believing that you do not owe the landlord some or part of the amount being claimed?
  • Does the rent demand and petition accurately state for which months you owe rent?
If your answer to any of the questions set forth above is yes, you might want to consider filing a counterclaim against the landlord. You should gather photographs, receipts, and any other evidence relating to your claims.


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