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Motions that Should Never Happen in Housing Court - But Often Do - an Excerpt from Michelle Itkowitz's Lawline CLE on Landlord and Tenant Litigation in New York

On September 27, 2017, Michelle Maratto Itkowitz taught Session 2 of a seven-part continuing legal education program for Lawline on Landlord and Tenant Litigation in New York. Session 2 was "Landlord and Tenant Litigation in the Courtroom"

In Session 2, the student will learn to initiate Summary Proceedings for the Recovery of Real Property pursuant to the Real Property Actions and Proceedings Law, and will learn how to successfully prosecute (or defend) the case through motion practice and trial. In this session, we will also cover how to think strategically about these cases to obtain desired objectives.

HERE IS A CLIP - Motions the Should Never Happen in Housing Court, But Often Do

And below is an excerpt from the 45-page, 27-footnote materials, which accompanied this program:

MOTION PRACTICE STRATEGY

1.      Motions that Should Never Happen; but Often Do

In my opinion, the following types of motions should never happen (but so often do). Just because a motion can be made, does not mean it should be made. Counsel in Housing Court, whether for landlord or for tenant, should always be asking herself – What is my client’s GOAL? And does making this motion further that goal? So often, motion practice achieves NOTHING, but delay and legal fees.

All I am saying in this section is this – this motion practice should be carefully considered not undertaken reflexively.

a.       Motion Based on Technicalities That Probably Will Not Win and Only Delays the Inevitable Anyway

Frequently, motion practice is used as a vehicle for further tenant delay. The pre-answer motion to dismiss is a very effective tool for the tenant. It requires that the tenant find some arguable defect in the notice of petition, petition, the predicate notice, and/or the service thereof. Tenant’s counsel should, of course, carefully interview the tenant regarding the circumstances of service of process and carefully review the rent demand or predicate notice and notice of petition and petition, searching for at least a few arguable defects. Thereafter, tenant’s counsel has the option of making a motion including a claim of improper service of the predicate notice or demand and notice and petition. Failure by the tenant to include an objection to service of process when making a pre-answer motion constitutes waiver of the claim of improper service.[1]

Under the special proceeding rules that apply to a landlord-tenant proceeding, a pre-answer motion can be served as late as the return date of the petition or any adjourn date thereafter.[2] Serving a motion on the return date, or the day prior, makes it virtually impossible for the landlord to respond, thereby buying the tenant an automatic adjournment. Moreover, once the landlord does oppose the motion to dismiss, if the landlord delivers the papers too late for the tenant to respond before the next court date, the tenant can legitimately ask for another adjournment for the purpose of putting in reply papers. Therefore, if a landlord is sabotaged with a motion to dismiss served on the eleventh hour before a court date, at the court date landlord’s counsel should be sure to get all parties to agree to a briefing schedule that leads up to the adjournment date so that tenant cannot ask for further adjournments. Frequently, after hearing arguments, the judge will reserve his/her decision and take up to and in excess of weeks or months to decide the motion. Depending on the Part and/or the Judge, motions can be sub judice for a number of months.

The questions that the tenant’s counsel must ask herself are as follows:


  • Why am I making this motion?
  • What is my client’s goal?
  • Is this motion practice hurting or helping my client get to the goal?
  • Are the technicalities I am complaining about easily amendable?
  • If this proceeding gets dismissed and the landlord quickly brings another one, what have I achieved?
  • Is this furthering the possibilities for settlement and/or a constructive landlord-and-tenant relationship between the parties going forward or is it hindering that?
  • Will my client end up paying the other side’s legal fees if we lose this motion?
b.      The Ubiquitous Summary Judgment Motion that Never Gets Granted because there are, of Course, Issues of Fact!

You cannot win summary judgment if there is an issue of fact. There is very very very often…an issue of fact.[3]

The fault for this one lies with both landlords’ counsel and tenants’ counsel. If a landlord is making a frivolous summary judgment motion, it seems to me that the real purpose is to bilk fees form his client. If the tenant is making a frivolous summary judgment motion, it seems to me that it is often to buy time (see letter “a” directly above for my opinions on that.)

c.       Discovery Motions – The Parties Should Just Stipulate

When I am representing a landlord on a non-primary residence or owner’s use case I never make the tenant move for discovery. Rather, I stipulate to such. Why bother resisting a motion like that, which will certainly be granted?[4]

The discovery demands should be tailored, however, to only what is relevant.

2.      Motions by Landlords to Strike Affirmative Defenses

Here is a type of motion that I do not think is overdone and which I find very useful. I think it can be useful for landlord’s counsel to clean up an answer by seeking to get affirmative defenses and counterclaims stricken in the resolution part (before the case gets sent out to trial), and maybe get the case into a settlement posture while you’re at it.

Footnotes

[1] See CPLR § 3211 (a)(8). 

[2] CPLR § 404.

[3] Cox v. J.D. Realty Associates, 217 A.D.2d 179 (1st Dept. 1995) (Fact questions as to date tenants of record permanently vacated controlled apartment precluded summary judgment for children of tenants in action challenging landlord's eviction based on nonprimary residence, and moreover, landlord should have been afforded opportunity to discover what use was being made of apartment and circumstances under which children came into possession.)


[4] New York University v. Farkas, 121 Misc.2d 643 (N.Y.C. Civ. Ct. N.Y. Cty. 1983).


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