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CalAttorney2
CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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I have a landlord tenant case which is being appealed second

Customer Question

I have a landlord tenant case which is being appealed for the second time in the second department (term) of a cooperative holdover for illegal sublet that has been going on for seven years. Over this time the tenant has moved, the apartment needs repairs that the lessor is responsible for and I dare not move a tenant in due to them potentially being evicted should I fail on appeal and subject myself to the potential of further litigation from the prospective tenants, notwithstanding the probable concerns due to repairs the lessor refuses to do.
In any event my concern goes to the possibility of me prevailing on appeal, and what happens next. The key issues of the case are whether the lessor has a bonafide lease which I hold he does not and could not prove by the law of the case which required setting the foundation for secondary evidence and then submitting same. The lessor acknowledged he did not have secondary evidence six times during an inquest trial, and even stated that the two different form leases he submitted had amendments to it but that the court did not need to see them as they did not deal with sublet policies. Anyhow my real questions talk to the assumption I prevail on appeal.
Since I came out of the initial appeal and prevailed in 2012 the petitioner refuses to do repairs and my tenants left and actually moved in the same building which they as "john and jane doe" were being sought to be evicted from, and in direct violation of the lessors alleged sublet policy with their full knowledge and consent. Since the cooperative lessor refused to do repairs and had not been sending me invoices since the initiation of my first appeal I stopped paying because of the lack of repairs and no invoices.
if I prevail on appeal, I assume they will consider starting a non payment, or a non judicial foreclosure for arrears. The latter would be smarter because if they cannot prove a bona fide lease they can just argue that its use and occupancy (I am thinking out loud and can clearly be wrong), or otherwise. that would be approximately four years of rent (maintenance) due.
I know the standard argument is laches defense but that would not help as that the court would just say ok, you cannot evict for this money but the lessor would have a money judgment which due to fact that coop is not real estate they can go with a non judicial foreclosure.
My recollection and understanding of the Gramford Realty case was that the way the landlord preserves his right to the money is that in its invoices it still depicts the amounts owed even though same does not move for a non payment action for an excessive amount of time making it unreasonable to hold the tenant responsible for such an extreme amount in the instant.
What is the law on this? Do I owe this money if I was never billed?
Submitted: 9 months ago.
Category: Landlord-Tenant
Expert:  FamilyAttorney replied 9 months ago.

Hello. I’m a family lawyer and appellate attorney with 36 years’ experience and also have extensive experience with landlord-tenant issues, contract law, and other types of law. I look forward to helping you today.

Please note:This is general information for educational purposes and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an attorney on this site. You are advised to retain your own attorney.

I'm re-reading this because I did not see the whole question. Now that I have, I am going to opt out and let someone who has done L&T work more recently than I have help you.

Expert:  Maverick replied 9 months ago.

Welcome to Just Answer (“JA”)! My name is Maverick.

Note: (1) If you want legal advice, consult with a local attorney before acting or deciding not to act; information given here is for educational purposes only; (2) Most questions are answered within the hour; however, if I am not signed on, please allow up to 24 hours; and (3) Please assign a feedback rating so JA will compensate me. By continuing, you confirm that you understand and agree to these terms and to JA’s other site disclaimers. [Proof that you are in good hands].

Customer: replied 9 months ago.

I need answers and I have no more money to give for what I am already paying for.

Expert:  CalAttorney2 replied 9 months ago.

Dear Customer,

Thank you for using our forum. My name is ***** ***** I hope to assist you today.

If I understand your situation you have a matter with your coop that is currently on appeal (you do not say whether or not you prevailed in the most recent trial court action, but have asked that we assume you prevail in the currently pending appeal for purposes of this question).

You have not paid certain fees during the pendency of this suit based on management's failure to perform certain maintenance tasks (note, withholding is only permitted for very specific "habitability" conditions - such as no hot water, no running water, holes in the exterior envelope (exterior windows, doors, etc.), infestation, it is not available for common maintenance concerns - such as fixing nuisance issues).

If management decides to file a suit against you to enforce the non-payment, you can use this "habitability" withholding defense, you can also raise the doctrine of latches (which I believe you mentioned above - traditionally this starts taking effect if the board fails to enforce payments for about 3 months, but in a case with active litigation, I would definitely raise it, but I wouldn't rely on it).

If management decides to pursue a non-judicial foreclosure for the non-payment, you can file your own lawsuit for breach of contract to stop the foreclosure (you can request that the court issue a temporary restraining order to stop the sale pending the outcome of your case - to get this, the judge must agree that your case has a likelihood of prevailing), and you can present the same arguments as those outlined above.

Customer: replied 9 months ago.

this is my third time trying to type my reply because just answer keeps losing my reply

1) I won the first appeal but was remanded back to lower court

2) since then lots of motions and my answer and affirmative defenses were stricken, and I was not allowed to submit any evidence regarding the alleged lease between the parties

3) The case was set down for inquest and Petitioner was instructed to provide secondary evidence citing "Jacqueline Schozer, Respondent, v. William Penn Life Insurance Company of New York, Appellant" 232 A.D.2d 623. They did not do so but the court held they did even though the petitioner acknowledged six times in open court they were not submitting secondary evidence.

4) Anyhow I have filed for appeal immediatley and had transcripts perfected (both sides) and submitted to lower court to have file moved to appellate term over 50 days ago but it has not moved and chief clerk has stated its a big file and it needs to be shown to the judge in direct contradiction to Act 1704 (35 days).

5) I am appealing the interlocutory decision and order of the court after the inquest. the appellate term denied me a stay so I need to move quickly before a final is given because of the amount of the undertaking (12/2012 to date) maintenance not billed by Petitioner or paid by me.

They have not done repairs which are their responsibility as further cited by the building department (documented), and they have not billed me, and they have not sought U&O in the lower court, nor started a non pay which they legally had a right to.

I am looking for something strong enough to argue they have lost their right to said arrears due to non billing, failure to comply with repairs as cited by the building department (implied warranty of habitability), unable to use my apartment for business as have since 1980's due to holdover, etc.

What can I do?

Expert:  CalAttorney2 replied 9 months ago.

Dear Customer, I am going to "opt out" and allow another expert to follow up with you. Please do not post any further at this time as it will delay the next expert's ability to follow up. If you need any assistance in the meantime, please contact our customer service at: http://ww2.justanswer.com/help Thank you for using our forum, and I do wish you the best of luck. Bill