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Ely
Ely, Counselor at Law
Category: Landlord-Tenant
Satisfied Customers: 100047
Experience:  Attorney
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I was named as an occupant on a rent stabilized lease on which

Customer Question

I was named as an occupant on a rent stabilized lease on which a close relative was named the leaseholder. The landlord never offered her a renewal lease although she asked for one. As a result of a default judgment in a summary nonpayment proceeding entered against my relative while she was in the hospital, she was evicted and has since died. I, the occupant, was not named in the petition or the eviction warrant and filed a pro se order to show cause to intervene in the case, be placed back into possession, and argue that I succession rights and the right to a renewal lease in my name. The judge dismissed the motion holding that I did not have standing.
My question is: can I both re-file the same Order To Show Cause with a new judge and also make a motion to the original judge to re-argue the motion which denied for lack of standing? Or does it have to be one or the other?
If I re-file do I need to request that the estate be added as a party or does the fact that I am the executor of the estate give me automatic standing to speak for my relative under the existing caption? I am in New York. Thanks for your help.
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer
I am sorry to hear about this situation.
can I both re-file the same Order To Show Cause with a new judge and also make a motion to the original judge to re-argue the motion which denied for lack of standing? Or does it have to be one or the other?
One has to file a timely reconsideration or appeal. One cannot file with a new Judge however, under res judicata. See here.
Res judicata essentially means that once something is decided, one cannot REFILE ANEW to have this heard again from scratch.
However, one does have the right to file a timely reconsideration or appeal of the original decision.
If I re-file do I need to request that the estate be added as a party or does the fact that I am the executor of the estate give me automatic standing to speak for my relative under the existing caption?
No, one will have to ask for an "intervention" from the court, allowing a non-litigant to join the suit (in this case, due to one being the executor).
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.
Customer: replied 1 year ago.
It was my understanding that a dismissal for lack of standing means that the court has not acquired subject matter jurisdiction and therefore the dismissal is not on the merits; allowing the motion to be re-filed from scratch.I was also under the understanding that a motion needed to be made to amend the caption to include the estate.
Expert:  Ely replied 1 year ago.
It was my understanding that a dismissal for lack of standing means that the court has not acquired subject matter jurisdiction and therefore the dismissal is not on the merits; allowing the motion to be re-filed from scratch.
That is not correct in this case.
I was also under the understanding that a motion needed to be made to amend the caption to include the estate.
This can simply be included in the intervention pleading, which by default includes the estate in the caption and if the court approves the intervention, this becomes the working caption for the suit.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
It was my understanding that a dismissal for lack of standing means that the court has not acquired subject matter jurisdiction and therefore the dismissal is not on the merits; allowing the motion to be re-filed from scratch.That is not correct in this case.Could you kindly explain specifically why that is not the case here?I was also under the understanding that a motion needed to be made to amend the caption to include the estate.This can simply be included in the intervention pleading, which by default includes the estate in the caption and if the court approves the intervention, this becomes the working caption for the suit.Am I correct in understanding then that the estate needs to file a motion to intervene?
Expert:  Ely replied 1 year ago.
Let us back up a bit.
Did you file on behalf of YOURSELF, or, on behalf of the ESTATE, originally?
Customer: replied 1 year ago.
This was a summary nonpayment proceeding filed by the landlord as petitioner against my relative as a rent stabilized tenant. An eviction was granted against my relative, as tenant, based on a default judgment. When I came to learn of the eviction, I filed an order to show cause as an occupant and successor tenant to intervene to vacate the default and be restored to possession. (The original nonpayment petition only names my relative as a defendant but because I lived with my relative continuously for two years i should have been offered a renewal rent stabilized lease and named in the summary proceeding.) In the order to show cause to vacate and intervene, I told the court that letters testamentary would be issued shortly. The judge adjourned the case and directed me to file a motion to add the estate once the letters issued. I never filed the motion to add the estate and the judge dismissed my motion to vacate the default for lack of standing.
Expert:  Ely replied 1 year ago.
Thank you.
Is your argument that you have the right to stay in the property based on:
1) The fact that you were an occupant (however informal); or
2) The fact that you are a beneficiary from his estate and thus, seek a kind of successor claim?
Customer: replied 1 year ago.
It was based on the fact that this was a rent stabilized apartment and under rent stabilization law a close relative of the tenant who has lived with the tenant continuously for two years has the right to request a renewal lease under their own name.
Expert:  Ely replied 1 year ago.
Thank you.
Then you being an executor to the estate has nothing to do with this. You being a close relative does.
As such, then please disregard the information about the estate filing an intervention. That part of the situation is now moot.
It was my understanding that a dismissal for lack of standing means that the court has not acquired subject matter jurisdiction and therefore the dismissal is not on the merits; allowing the motion to be re-filed from scratch.
See below:
"Further, in Matter of Schulz v State of New York (81 NY2d 336, 347 [1993]) and in Town of Hardenburgh, Ulster County, N.Y. v State of New York (52 NY2d 536, 540 [1981]), we recognized that when the disposition of a case is based upon a lack of standing only, the lower courts have not yet considered the merits of the claim (Matter of Schulz v State of New York, (81 NY2d at 347). We agree that "it would be inequitable to preclude a party from asserting a claim under the principle of res judicata, where, as in this case, `the court in the first action has expressly reserved the plaintiff's right to maintain the second action'" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349, quoting Restatement [Second] of Judgments § 26 [1])." LANDAU PC v. LaRossa, Mitchell & Ross, 11 NY 3d 8 - NY: Court of Appeals 2008.
"Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action (Matter of Reilly v Reid, 45 NY2d 24, 27; see also, Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [Cardozo, Ch. J.])" Parker v. Blauvelt Fire Co., 712 NE 2d 647 - NY: Court of Appeals 1999.
In other words, Res Judicata applies if it is the SAME CAUSE OF ACTION, which this seems to be. Any other cause of action, this would not apply, but since you simply seek to continue on the SAME cause of action, then res judicata applies.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.