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I am filing a OSC/TRO for a special proceeding (Article 78)

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in Bronx NY. I need...
I am filing a OSC/TRO for a special proceeding (Article 78) in Bronx NY. I need to know if I just file the OSC/TRO special proceeding with Verified Petition and a verification document (because I am pro se) or must I file other documents. Notwithstanding RJI. Do I need to file an Affidavit in Support also?
Submitted: 10 months ago.Category: Business Law
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9/30/2017
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago
FamilyAttorney
Category: Business Law
Satisfied Customers: 1,552
Experience: Owner, attorney in private practice, appellate attorney, GAL & former trial lawyer, licensed for 38 years
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Hello and thanks for using Just Answer. I’m a licensed NY attorney with 37 years’ extensive experience in family law, trials, appeals, contracts, landlord-tenant, and other types of law.

This is general information and not legal advice. No specific course of action is proposed, and no attorney-client relationship is formed. This is for educational purposes only.

Also, I’d like to review your question for a minute and type your answer. If I am not here for a few minutes, that means I am typing your answer. THIS IS NOT YOUR ANSWER YET so please allow me time to type it up for you. It may take a few minutes, so please understand that. Thanks!

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Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

If you're filing an OSC, for whatever purpose - TRO, a stay, or whatever -- you must submit an affidavit in support or the judge will have no idea why you deserve the relief you are asking for.

As an attorney, I submit an affirmation in support, along with a client's affidavit in support of an OSC. You won't get far without an affidavit in support.

You have to explain what relief you are looking for, why you deserve the relief, and if you have case law to support your position, or statutes, even better.

I started out working in that courthouse many years ago and have done several Article 78s, one of which was against a judge. Funny what you remember.

Yes, please submit a thorough affidavit in support so that you can get the relief you are asking for.

We do document preparation here but that's a separate service. I'm an appellate attorney, having been a trial attorney for many years. I'm just letting you know that some of us do document preparation and review.

Good luck to you! You can come back here free of charge after I'm rated for a follow-up question.

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Customer reply replied 10 months ago
Whats interesting is the OSC/TRO documents depict what you want. Can I attach a document and it be deleted afterwords so it not in the public realm?
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Thanks for your question.

If you'd like to attach a document here, I can ask that it be deleted because it's personal information.

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Customer reply replied 10 months ago
Here is a link instead. I am still working on it.
https://drive.google.com/open?id=0B8bYgTo7VtpERkpEbnQwNTlfUHM
https://drive.google.com/open?id=0B8bYgTo7VtpEaEwzTU8zZFpJLWs
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Sure, but I will have to delete the link later, okay? I want to make sure I protect your privacy.

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Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

I have to review the second document but if you're attaching a petition, you won't need an affidavit.

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Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Okay, are you still here? You have a thorough petition and OSC. I have to tell you, I'm an appellate attorney and a writer. I write briefs, motions, etc. This is better than most of the stuff that lands on my desk by other attorneys! Considering law school? Seriously, it's really good, and you should be fine with what you have.

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Customer reply replied 10 months ago
I thought I sent you another message earlier, but obviously I did not do so. I asked, or thought I asked if you read the Verified Petition...because I have not finished it. It does not match the OSC/TRO at this point but I need to finish today or tomorrow because I need to get to court house Monday to see if I can get the TRO signed.Also please explain this statement you made "...o you can always come back and talk to me (no extra charge) after I’m rated. If I’m not here, I will get an email if you leave me a question."
Are you stating that I can speak with you via phone at no extra charge after I rate you?
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Hello,

I did not get another message from you but that's okay.

You asked me if you needed an affidavit, I said you did but didn't realize you had a petition instead, so that's all you need, as long as it's verified.

What I said was, and I'll clarify, that you can come back into this room and chat with me free of charge after I'm rated. I have people come back for follow-up questions all the time free of charge after the initial rating.

The review of the documents is actually a separate question, I'm afraid. This is a different service,, and a separate service as indicated above. Some of us do this and some attorneys here do not. I can participate in it if I am in-between appeals and if I have the time. The question I came here for was listed as do you need an affidavit of service. It will take me some time to analyze the difference between the two documents, proof it and edit. I can do that in one day but it's a separate service. Please note -- I am following the rules of the site and since we are not paid by the site but are independent contractors, we are allowed to do document review, editing and preparation as a separate service. Thank you for understanding. You did, however, ask me to go to the site to look at it, which I did and realized that since the second doc was a petition, you don't need an affidavit in support. If you didn't have the petition, you would definitely need an affidavit in support.

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Customer reply replied 10 months ago
Ok lastly do I attach my exhibits to the verified petition or to the OSC/TRO, or both?
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

This will be put together as one packet, unless it is impossible. I have seen OSC with exhibits where they had to use clamps from Staples or some similar place and the OSC w exhibits was maybe 3 inches thick. I'd say if it's more than that, it should be done separately, otherwise it should all be attached. I don't know if you are referring to the exhibits in your petition but you should do that if you can, such as See Exhibit A, See Exhibit B, etc. in the proper place in the petition.

So, OSC on top, then verified petition, then exhibits listed with letters, so you can differentiate between each exhibit.

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Customer reply replied 10 months ago
I am talking about the exhibits in my OSC/TRO. I guess I get a little confused about this because I will be serving the Respondent with what I believe is the OSC/TRO, Verified Petition, and Exhibits A-I thereto (latter document).
It would seem that they are refered to in the OSC/TRO with the language of "FOR THE REASONS THAT:" however in the verified petition the language of FOR THE REASONS THAT: is totally absent with all the substantive arguments that are in the OSC/TRO following the language of FOR THE REASONS THAT:. It seems to a large extent that the only thing I do with the Verified Petition is to 1) copy the relief sought (injunctive and declarative) 2) attach the exhibits (A thru I),3) state whether there has been any prior application for the relief being now requested (and if so elaborate), 4) WHEREFORE your deponent respectfully ***** ***** this Court provide the temporary restraining order requested to protect the rights of the Petitioner and other tenant shareholders of Respondent. Further, to maintain the status quo, not allowing any of the aforementioned amendments to the governing documents of the Respondent, until such Court is able to determine the merits of Petitioner claim. This requested stay does not create any risk to the health and wellbeing of Respondent or shareholders, nor inhibit the proper operation of the Respondent as a cooperative residence. Furthermore provide other such declaratory relief as enumerated in the attached OSC/TRO and re-enumerated in this Verified Petition.Do I have that right?.
Customer reply replied 10 months ago
I guess I do not understand what the purpose of the Verified Petition is as it just restates the OSC/TRO with less information however it has the exhibits?
Customer reply replied 10 months ago
I have attached my finals for both the OSC/TRO and Verified Petition
https://drive.google.com/open?id=0B8bYgTo7VtpEdjBteHN6ZmMzU28
https://drive.google.com/open?id=0B8bYgTo7VtpEQUNJLUVmSk5kSGs
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Hello -- I was away from my desk for awhile, but I'm back for a few now.

Yes, to your first question. You can and should repeat what you ask for in the OSC in the petition, just as if it were an affidavit, but the petition has to be strong otherwise it will not stand up to a motion to dismiss.

So yes, repeat what you are looking for and say why. You don't have to say wherefore but you can, because you're looking for the relief that you are seeking in the OSC.

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Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

It has the exhibits, yes. Also, instead of using an OSC with an affidavit, you're using an OSC with a petition. You really need a petition to get a case started. The OSC is usually a vehicle used in the middle of a case, like a motion.

In Family Court, we have OSC with petitions attached, so you can do that in Supreme also if this is Sup Ct.

You can do that in most courts in NY. There has to be a petition. The OSC is to get it on the calendar, hopefully, faster than if it were just a petition without an OSC.

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Customer reply replied 10 months ago
Ok, so I have to add to my current Verified Petition to at least have the language in the "FOR THE REASONS THAT:"
Should it have any more language that is not in the OSC/TRO or does that create a problem for the papers? In other words this is a Article 78 and it is different than the standard OSC/TRO Affidavit, and Verified Petition. It would seem that you are saying that what I would normally put in the Affidavit in Support would be in the Verified Petition of the Article 78 visa vis the standard OSC/TRO which has three documents (OSC/TRO, Affidavit in Support, and Verified Petition)? Is that correct?
Here is the Link I've been using to guide me: https://www.nycourts.gov/courts/1jd/supctmanh/Self-Rep%20Forms/Special%20Proceeding2.pdf
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Here's some more info:

New cases in this court (except for matrimonial, Election Law and two other types must be commenced and pursued by means of electronic filing through the New York State Courts Electronic Filing System (“NYSCEF”). Documents to be filed with the court must be e-filed through NYSCEF. Unrepresented persons may, however, opt out of e-filing if they wish to do so. This is done by filing an opt-out form. For further information, consult the Help Center. The discussion that follows assumes that the case is a paper case. In an e-filed case, the steps to be followed would be the same, but filings with the County Clerk and the court would be made via NYSCEF.

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Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Normally you start a case in Sup Ct with a complaint, but not for an Article 78.

It says here:

Thereafter, the Petition must be filed with the court together with either a Notice of Petition or a Proposed Order to Show Cause (OSC) and the respondent must be served. Procedures differ depending upon whether a Notice of Petition or OSC is used.

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Customer reply replied 10 months ago
I have all that. I am going by way of OSC vs Notice of Petition. that has already been established and seeking a TRO.
Customer reply replied 10 months ago
Here is another link with an example verified petition http://nycourts.gov/courts/6jd/forms/SRForms/sp_ntcpet-verpet-ver.pdf
the problem is it does not explain what item "3" is supposed to contain. This in effect is where you and I are now.
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Yes, you need to add for the reasons that or wherefore, and ask for your special relief. You're also asking for a declaratory judgment within the confines of an Article 78 and I don't know if you will get that but you can certainly try.

I haven't reviewed the papers, as I'm answering three other questions at this time as well and I'd have to do that as a separate question, but you should have everything in the petition -- be as strong as possible so that it withstands a motion to dismiss, which is always a possibility. You can have whatever you need to put in the petition, and it can be the kitchen sink, as long as it's not frivolous.

If it's frivolous, you can end up paying the other side's legal fees.

You can add the affidavit in support if you want if you're asking for a TRO also. Yes, it would repeat it, but you have to make sure you have everything you need.

If you do an affidavit in support, you can just use that in support of your application for a TRO. That's what you should do with that.

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Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Item 3 is the body of the petition -- you are alleging what is going on and what you need to happen. That's what that's for.

I have to answer the other questions and I'm only supposed to be here for approx a half hour. We're allowed to charge additional for expanded question and answer but I'm not going to do that. I presume I have answered all of your questions, and I always strive for 5 stars. I rarely get anything else because I am extremely thorough with my answers. Thank you and best of luck!

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Customer reply replied 10 months ago
Should item 3 , in verified petition, be the same language as the "FOR THE REASONS THAT:" in the OSC/TRO, or otherwise?
Business Lawyer: FamilyAttorney, Lawyer replied 10 months ago

Hello, I haven't been rated here, and I've answered more questions than you are allowed to ask in one question, so I am going to opt out. This question was simple enough but then it became question upon question, which I answered for you. It then became a request for review of documents which is a separate service, as I indicated. I will give this question to other people to answer. Good luck to you.

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Customer reply replied 10 months ago
The judge yesterday declined to sign TRO without reading the papers because she did not see irreparable harm.
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