Mark H. Cohen & Associates P.C.
The first step is to draft the proper legal papers and have a process server serve them on the tenant. There are different types of tenancies that must be properly plead in the petition and it is important that we discuss your particular situation with you (we call this "intake") in order to choose the action most appropriate for you so that the petition is properly drafted. Please feel free to discuss all issues with us and be candid as to whether there are illegal apartments or registrations. All matters you tell us will be held in strictest confidence.
Some cases may require that special written notice be given before the action can be commenced (section 8 tenants). Nonpayment cases require a rent demand that can be prepared by our office and holdover proceedings will require predicate notices (notice to cure and notice of termination depending on the type of holdover action). All rent demands and predicate notices must be properly served pursuant to law and pursuant to the lease agreement. Rent demands are served by a process server. Service of a predicate notice is governed by the lease agreement.
We find that it works best if our office prepares the papers and directs the service but we may need your assistance to get the process server into the building.
Important documents necessary for court will need to be obtained by you at this point. A certified copy of the deed and/or the original lease is absolutely necessary. If the building is a multiple dwelling (3 or more apartments), a certified copy of the Multiple Dwelling Registration (MDR) is necessary. If the building is rent controlled or rent stabilized a certified copy of the DHCR registration (apartment detail) is necessary, or at minimum, the most recent registration (blue copy) for the building and apartment. This office will answer any questions that you may have about obtaining these documents and prepare you and your witnesses for trial. If you did an oral rent demand and you know the case is going to trial, the person who did the demand must testify to that fact in court.
When the notice and petition are served, summoning the tenant to court, the clerk of the court will assign the case to one of the different judges who sit in "Resolution Parts" (one of which is specifically for co-op apartments) for a specific date usually(8-10 days after the tenant is served). The tenant could ask for an adjournment on the first date, but on the second request for an adjournment in a nonpayment case the tenant is now required to deposit all post - petition rent into court if the landlord is ready for trial and/or be "on call" (30 minutes away) on all court dates. This office is always "trial ready" and this gets results.
In the Resolution Part, most cases get settled. Remember, you do not have to settle, no matter what we or the Judge recommends. You can always go to trial. But you hire us for our expertise, so listen to our recommendations. We never recommend a settlement for less then you could win at trial, but if your case is not as strong as it could be, a settlement may be in your best interest. If the case settles but the tenant later defaults, we will obtain a warrant of eviction. Each stipulation will contain a current rent provision whenever possible. No payout will ever be given without client approval. "Minimum of two to three weeks notice will be given by our firm when possible to the landlord to inspect and repair conditions alleged by a tenant in court.
If the case cannot be settled, it will be sent out for trial to a Trial Part in the Housing Court. These judges are ready for trial so most cases will be tried the same day. This is another reason to be ready for trial from the very first day. You should have all of your documents, evidence, and witnesses (you cannot just summit sworn statements from them). Ready for trial means only witnesses with personal knowledge can testify.
Once the case has been settled or we win at trial, we must work with a City Marshall to obtain a warrant of eviction from the Court Clerk's Office. The Warrant Clerk's office takes approximately 4 to 6 weeks for a warrant to issue. When the warrant is issued, a notice of eviction (six day notice) must be served by the Marshall before he can actually evict. Then the Marshall will schedule a date to evict the tenant. You must meet the Marshall and have a locksmith with you to change the locks. You can expect the eviction to take place approximately 10 days after the notice of eviction is served.
Please remember that your case may not go through all of the above stages. The tenant may settle early or just move out. There may be, however, additional stages if the tenant gets a lawyer who raises defenses. Likewise, the tenant may bring an "Order To Show Cause" to delay his or her eviction. Our job is always this, to obtain the rent arrears or possession of the apartment as quickly as possible.
A key element in commercial litigation is the commercial lease. It is imperative that when the commercial non-payment proceeding or holdover proceeding is commenced, that our office receive from the landlord a complete copy of the commercial lease and all known addresses of the commercial tenant(s). In most of commercial litigations the tenant will be represented by council. As a result the paperwork must be accurate: the premises must be accurately described and each tenant must be served at all know addresses.
The firm has vast experience in preparing commercial leases and has an extensive commercial rider to meet the different needs of each client.
The Department of Housing Preservation and Development of the City of New York (DHPD) is responsible for enforcing the housing laws of New York City. To this end, they bring various types of cases against landlords which include heat and hot water, building - wide actions for an order to correct, civil penalties, false certification, contempt proceedings and on occasion, an action for the appointment of a 7A Administrator to collect the rent and run the property. DHPD cases are technical in nature and a landlord should not attempt to defend against one of these cases without the aid of an attorney experienced in DHPD litigation.
If you receive papers from DHPD always take note of the method of service and save all DHPD mailing envelopes. Improper service of the papers can result in the case bring dismissed and/or can result in a more favorable settlement for you. Our firm we’ll strive to minimize your liability.
Heat and water cases are a way for DHPD to generate revenue at a landlord's expense. Although DHPD always requires an order to provide heat and/or hot water, the order can be softened by our firm to protect you. The battle in these cases is to reduce or eliminate civil penalty fines. It is crucial that a landlord always provide a bill, invoice or letter from your contractor or oil company setting forth when the violation was corrected. Our firm will file a verified answer on your behalf, when necessary, setting forth all defenses. Trying a heat and hot water case can be a risk to you due to the presumption in the law that the violation exists continuously since the date of its placement. The law sets forth penalties of $250.00 per day for each heat and/or hot water violation. We are a trial ready firm but most times it is best to settle these cases and minimize your exposure to fines.
DHPD will normally commence a building - wide action against a landlord when there is a greater than four (4) to one (1) ratio of violations to apartment units. When a violation is placed and a notice of violation (Nov) is sent to your registered business address on file with the city, you must mail back to DHPD, the certification of correction of that violation immediately after the violation is corrected. Otherwise the violation will stay on record even if the violation was corrected and will only be canceled after an inspection by Code Enforcement.
Once a building is in litigation with DHPD, the Department will not allow a landlord to pay the $300.00 fee to have a building - wide inspection to remove violations. Therefore, the best way to stay out of trouble with DHPD is to file timely certifications of correction after violations are placed.
DHPD will insist on having a landlord enter into a building-wide Order if a settlement is reached. Our firm will push for a favorable settlement for you and attempt to incorporate additional language into the Order to that protects you and lessons your liability.
Litigation involving the DHCR is complicated, technical and we strongly recommend you using an attorney to handle DHCR matters.
We understand that it’s exasperating for a landlord to get an order from the District Rent Administrator (DRA) denying a landlord a rent increase you think you're entitled to, or unfairly finding that you have over charged a tenant or decreased services.
After service of the District Rent Administrative order a landlord has thirty-five (35) days to file a Petition for Administrative Review (PAR). When the DHCR first reviews a PAR, it looks for 7 mistakes. If it finds any of these mistakes, it will automatically reject your PAR and give you 35 days from the date of the order rejecting your PAR to submit a new PAR. The 7 mistakes to avoid are as follows:
No DRA order attached to the PAR;
No premises specified;
No "Petitioner" identified;
Missing or incomplete authorization form when a representative signs for you;
No statement of DRA errors;
Original copy of PAR not filed; we can put in a written answer for you at the administrative level and/or file a written PAR. Moreover, if a landlord does not present evidence and/or a defense at the administrative level, he/she waives the right to present this evidence for the first time on appeal or in an Article 78.
In the event that a landlord loses a PAR before the Deputy Commissioner, a landlord has 60 days from the date of order of the Deputy Commissioner, to file an Article 78 Petition with the Supreme Court of the State of New York. It is not enough for the Deputy Commissioner of the DHCR to be wrong on the law and/or facts. The landlord must show that the Deputy Commissioner acted arbitrarily and capriciously.
We will provide you with a status of your landlord-tenant case and what happened in Court thru our webpage and/or by facsimile within one business day. Each landlord-tenant case is tracked in our computer system.
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Mark H. Cohen & Associates P.C.
1942 Williamsbridge Road, Second Floor Bronx, NY 10461
Phone: (718) 933-1710 | Cell Phone: 917-838-9261 | Fax: (718) 933-1813
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