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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Landlord-Tenant
Satisfied Customers: 111634
Experience:  Attorney with over 24 years experience.
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I live in a rent stabilized building and my landlord did not

Customer Question

hello,
I live in a rent stabilized building and my landlord did not renew my lease even though they have to by law.
facts are :
1.landlord sent me a "letter of concern" dated June 8th stating that they suspect that this apartment is not my prime residence and that i should schedule an appointment with them and bring all the facts proving that I in fact do use it as a prime residence . ( deadline to reply is June 18th)
2. I was away and only received this letter on July 18th
3. I called to the legal departments and stated that i was away and only now got their letter and what should i do now.
4. In a legal department ive bee told that it is too late and they started a legal action against me and that i can talk to them in court.
5. My lease officially was ending on September 30th 2015.
6. On august 14th , i sent a certified letter to legal department of my landlord and to the lawyer that represents them . Ive sent 3 documents proving my prime residency:
- Insurance claim
- Copy of Driver’s Licence
- TransUnion cover letter for my credit report
7. I tracked the letter delivery and saw that they received my letter on august 20th
8. Noone ever replied or contacted me , and when i tried calling i only left 4 different voice messages , but no reply from legal department.
9. I also filed a complain with housing department that my landlord is not renewing my lease.
10. on Oct 23rd i received a letter that i need to appear at the court house on oct 29th .
11. i ve missed it as im in europe on a surgery now .
12. case got adjourned to November 17th
My question , how can i write a MTD ( Motion to Dismiss)?
what exactly should i include as an appendix to this motion and what should i write ?
in their facts they have 5 points
1. That i vacated the subject premises and currently residing at X1 and X2 addresses.
( addresses provided are either my previous residence or where i used to get my mail, both are old and unknown to me people live there )
2.Information obtained from a public record search revealed a telephone number registered to Defendant listed address X 2
( once again they provide one of the addresses and the address they provide i used just to get mails , never even had a lease there and it was in 2007-2009)
3.information obtained from a nationwide data base search reveled that defendant has used X1 in connection with applications for financial and retail credit institutions
( i did, but again it was my previouse residency , and when i was applying for apartment inn question i provided that address as my previouse apt )
4.Defendant has not been seen in the subject building for at least seven month
( not sure how they plan to prove it )
5. terrance Chesky is listed as the occupant of the apartment in question
( i did a search and it appears that plaintiff sued Terrance Chesky in 2012 and that is the reason it might be listed under the same address . That being said they were aware of this fact , yet they presenting it as this person might be residing in my apartment and playing this card against me.
My question is what facts should i attach if i want to file a Motion to Dismiss in this case ?
thank you
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
In you motion to dismiss, you need to attach proof you were out of town and as such did not have access to the mail to respond to them in time. You also need to attach your proof that you did send them the required proof and that they did receive it in August and as such their action is frivolous, since you provided them proof this was your primary residence. You also attach proof that you did not abandon the residence and proof of you being out of the country for the October hearing.
You bear the burden of presenting proof to the court this action is frivolous, since you could not respond in time when you were not in town to receive the mail and that you do have the proof to satisfy the requirements that this is your primary residence and that the eviction proceeding is frivolous, since the plaintiff had the information prior to filing suit and in that case you could receive attorney's fees as well if you use a local attorney on the case, which you should be doing.
Customer: replied 1 year ago.
Hello, thanks for your reply .
From what I read so far about MTD it is mainly stating that I need to attach some proves of things .
In my case the landlord sent me a notice to non- lease renew, dated June 29th which I never received and never received the actual mail.
Plaintiff attached the document that showing that some person signed for it ( for non lease renewal) ( that it was properly served ) but again I personally never seen the notice of non renewal myself , only right now when I got served by the court . I'm just confused what papers should I attached.
Besides those that you already mentioned Do I need to attach a letter of exploration with my MTD and attach everything as an appendix ? Also same landlord sued me last year , we settled and I was scheduled to leave the apartment , after which landlord renewed
my lease . The settlement had the " final judgement wording in it " and now I have the judgement on my credit file . What can I do to vacate it since I'm now in court with them again partially for the same reason,,,,
thank you
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
It is not that simple as just "attaching some proves of things." You have to show that the evidence proves that their claims in the case are false or not factual.
You do not need to attach a letter of exploration. You have to write a motion to dismiss and a memorandum in support of your MTD. The memorandum of law needs to clearly state your issues as to why it should be dismissed, it needs case law to support your position on why it should be dismissed and then you need your proof of the facts you are stating are true to show the plaintiff's facts are incorrect.
This is not as simple as writing a letter to the judge, it has to be done properly, which is why I encouraged you to use a local attorney because you have a good case and I hate to see you make any mistakes that could end your good case unfavorably.
Once you win in court, as part of your damages you can ask the court to order the judgment removed from your record.
Customer: replied 1 year ago.
Hm, i see ....was hoping you would give me an advice on how to do it as if i go directly to a lawyer who woukd advice me on all the aspects too ....you said i can ask to vacate the judgement as part of my damages , but what if that judgements was done due to different case , but with the same landlord .
as i mentioned they sued me last year ....we settled .... then instead of me vacating apartment they renewed my lease , but the judgement was entered and now on my file .. Can i ask for it to be vacated during this current case ???
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
We cannot give you advice, that is written in our terms of service clearly. Even if you went to a local attorney, if they are not representing you they cannot "advice you on all the aspects too" and they cannot tell you how to write it, that would be a violation of the state laws. They can only tell you what to do step by step if they are representing you.
If you settled after the judgment to vacate the premises and the landlord gave you a new lease, that is grounds to vacate the first judgment, since he let you remain in the premises. That is a separate motion to vacate you need to file.

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