Personal Use Occupancy Eviction . Part two
Before I go forward and suggest how you address this matter I will state cautions so that you understand the problems you will confront:
(a) realistically for a tenant to combat this nature of proceeding you will need initially substantial money to retain an attorney and make sure your attorney knows this area of law.
(b) if you seek to combat the landlord and the landlord starts proceedings if you lose and the landlord obtains a judgment of possession you risk having to pay the landlord’s attorney’s fees, and market rate rent perhaps back to the date your lease expired.
The first, and perhaps only, chance to defeat the landlord is if there is found a defect in content or service of the non-renewal notice.
(a) If the notice can be knocked out the landlord must then provide a new lease and pay your attorney’s fees. And, if you elect a two-year lease the landlord cannot try again until your new renewal lease will expire.
(b) The landlord may make a mistake in the commencement of the proceeding and your lawyer may obtain dismissal but this would only be a temporary victory since it does not impair the non-renewal notice so the landlord can reinstitute proceedings in Court again.
(c) If your attorney elects not to move to dismiss he will probably move for discovery this can be done by interrogatories or an Examination Before Trial. This is vital to your case as it is here where your attorney can prove for objective evidence which may contradict the good faith allegation upon which the landlord's proceeding rests.
It is important that you understand that the only way you can attack the landlord at trial is to attack the credibility of the landlord’s claim of good faith. Unless you can show that the landlord is incapable of living in your apartment or that the family member of the landlord is incapable to live in the apartment you are not going to win your case.
Should you lose the trial you do have a right to appeal. However, an appeal is expensive and will only be effective if the Court grants a stay pending appeal.
WHEN THE LANDLORD BRINGS A NON PRIMARY RESIDENT HOLDOVER PROCEEDING AGAINST A REGULATED TENANT
Here the landlord to succeed must prove your primary residence is in another place. If you can demonstrate that you spend more than 183 days of a year in your apartment your landlord cannot evict you on this ground.
Short of your being able to show the above you still can demonstrate a nexus to the apartment.
In these proceedings the landlord will take discovery and you will have to provide documents.
If you are rent controlled and do not pay City Income Tax you will lose your apartment as you will not be able to demonstrate nexus. You may be able to demonstrate nexus if your job or profession keeps you away from your apartment.
You may be able to still demonstrate nexus if the reason you are out of the apartment because of a legitimate care taker circumstance, i.e. moving in with a brother who has terminal cancer, or to take care of an aged parent with intent to return to your apartment.
Recently the Appellate Court has approved “snowbirds”, which issue is now pending before the New York Court of Appeals.
If you are a snowbird — living in New York in the summer and in a southern state in the winter and you want to protect your status, I suggest the following:
(a) I would be punctillious in making sure I lived 183 days in NYC. Keep a diary so you can prove dates and keep travel records.
(b) pay all income taxes in New York City and New York State with New York address.
(c) I would not buy residential property in another state.
(d) I would not pay an income tax in another state.
(e) I would execute all legal documents relating to my residence with the New York address.
(f) Your will and all back documents should carry your N.Y. residence address.
Caution: Landlord may try to claim non-primary residency if you are away from the apartment for educational studies. Here you should file a letter from the school addressed to the landlord or if you must relocate for business or because of your profession you should make this known to your landlord.
Robert A. Katz
Counsel to Queens League of United Tenants
(a) realistically for a tenant to combat this nature of proceeding you will need initially substantial money to retain an attorney and make sure your attorney knows this area of law.
(b) if you seek to combat the landlord and the landlord starts proceedings if you lose and the landlord obtains a judgment of possession you risk having to pay the landlord’s attorney’s fees, and market rate rent perhaps back to the date your lease expired.
The first, and perhaps only, chance to defeat the landlord is if there is found a defect in content or service of the non-renewal notice.
(a) If the notice can be knocked out the landlord must then provide a new lease and pay your attorney’s fees. And, if you elect a two-year lease the landlord cannot try again until your new renewal lease will expire.
(b) The landlord may make a mistake in the commencement of the proceeding and your lawyer may obtain dismissal but this would only be a temporary victory since it does not impair the non-renewal notice so the landlord can reinstitute proceedings in Court again.
(c) If your attorney elects not to move to dismiss he will probably move for discovery this can be done by interrogatories or an Examination Before Trial. This is vital to your case as it is here where your attorney can prove for objective evidence which may contradict the good faith allegation upon which the landlord's proceeding rests.
It is important that you understand that the only way you can attack the landlord at trial is to attack the credibility of the landlord’s claim of good faith. Unless you can show that the landlord is incapable of living in your apartment or that the family member of the landlord is incapable to live in the apartment you are not going to win your case.
Should you lose the trial you do have a right to appeal. However, an appeal is expensive and will only be effective if the Court grants a stay pending appeal.
WHEN THE LANDLORD BRINGS A NON PRIMARY RESIDENT HOLDOVER PROCEEDING AGAINST A REGULATED TENANT
Here the landlord to succeed must prove your primary residence is in another place. If you can demonstrate that you spend more than 183 days of a year in your apartment your landlord cannot evict you on this ground.
Short of your being able to show the above you still can demonstrate a nexus to the apartment.
In these proceedings the landlord will take discovery and you will have to provide documents.
If you are rent controlled and do not pay City Income Tax you will lose your apartment as you will not be able to demonstrate nexus. You may be able to demonstrate nexus if your job or profession keeps you away from your apartment.
You may be able to still demonstrate nexus if the reason you are out of the apartment because of a legitimate care taker circumstance, i.e. moving in with a brother who has terminal cancer, or to take care of an aged parent with intent to return to your apartment.
Recently the Appellate Court has approved “snowbirds”, which issue is now pending before the New York Court of Appeals.
If you are a snowbird — living in New York in the summer and in a southern state in the winter and you want to protect your status, I suggest the following:
(a) I would be punctillious in making sure I lived 183 days in NYC. Keep a diary so you can prove dates and keep travel records.
(b) pay all income taxes in New York City and New York State with New York address.
(c) I would not buy residential property in another state.
(d) I would not pay an income tax in another state.
(e) I would execute all legal documents relating to my residence with the New York address.
(f) Your will and all back documents should carry your N.Y. residence address.
Caution: Landlord may try to claim non-primary residency if you are away from the apartment for educational studies. Here you should file a letter from the school addressed to the landlord or if you must relocate for business or because of your profession you should make this known to your landlord.
Robert A. Katz
Counsel to Queens League of United Tenants
posted by Robert A. Katz at 10:58 AM
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