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Steven Warren Smollens

Steven Smollens’s Answers

7,871 total


  • Can old landlord sue me after forced vacate order from DOB?

    i lived in an illegal cellar dwelling in nyc and prevailed in my landlords suit against me for holdover and arrears for 3 months. her lawyer withdrew her suit when he found out the apartment was illegal. I signed a stip where she couldn't sue me f...

    Steven’s Answer

    Dear Staten Island Tenant:

    Why are you worried? Do you really believe a landlord who rented an "illegal apartment" could claim damages for cleaning up? I doubt that will happen.

    My concern is about the one-sided deal you made in Housing Court when you held all the cards in a deck stacked against your landlord. Because the apartment was not legal the landlord was never entitled to rent, let alone a right to ever sue for unpaid rent. The landlord was never entitled to a security deposit because the rented premises were never legally fit for use by a person as a residence. There could be no "damage" a tenant could cause that would ever require a landlord having a need for a security deposit for an apartment that could not ever be rented. The security deposit was your money and you should not have given it away.

    Your furniture was yours to take even though the DOB issued an immediate vacate order, so why did you abandon your own property rather than gaining at your eviction case a court order for access to move your possessions away to storage or a new home?

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  • How to proceed with roommate conflict?

    My roommate agreed to a 12 month lease and used both of our combined incomes to move into complex. Complex "messed up" paperwork - I am only name on lease, they are listed as "occupant". She wanted to break agreement to move elsewhere and told me ...

    Steven’s Answer

    Dear Pittsford Tenant:

    You and your roommate had the right when offered the lease to decline to sign with only one person listed as the tenant. Nonetheless, you assumed full responsibility to the landlord by accepting the offered lease. That meant your hoped for co-tenant was nothing more than a legal occupant of the apartment and had no relation or liability and responsibility to the landlord. If you did not make a special written agreement to share the expenses or for the roommate to pay to you a share of the rent, then your roommate was nothing more than a month to month tenant. Either you or the roommate could end the relation and make the roommate leave at the end of the notice period.

    It does matter how the roommate "told you" she would pay for the lease. If you have a written note that counts. If she just said so, that means nothing. In any case, it would seem that since she moved out and was not a tenant (so you say, and that means you should have a lawyer check over your lease to be sure) and was only a roommate, the moving out ended her legal claim to possession. That would mean she has no right to enter the home you alone rented and that you are solely responsible for paying rent.

    I do not know what money you have that you want to return. If she believes you damaged her property while in the apartment you could turn that claim over to your renters insurance agent. If you do not have insurance the roommate has the right to sue for her damages in Small Claims Court.

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  • Do I need an attorney housing/apartment lease experience?

    I am a co-tenant on a lease, which ended at the end of this month. My roommate and I have paid all of our rent, and I don't owe anything else. I was expecting to get my security deposit back. My roommate now refuses to move out at the end of t...

    Steven’s Answer

    Dear Brooklyn Tenant:

    If you had a written lease, the lease likely contained a provision dealing with the tenant obligations at the end of the lease. The most important obligation is to move out and deliver vacant possession to the landlord, leaving no one and no possessions behind. Based on your information, you and your co-tenant breached this substantial obligation of tenancy, you are now both considered holdover tenants, you owe post lease "use and occupancy" for every month you remain in possession, you may be liable to the landlord for the costs and expenses including landlord's legal fess incurred in securing legal possession by an eviction proceeding.

    However, once the landlord actually accepts rent after the end of the lease term, your "holdover" and breach of lease is converted into a legitimate month to month tenancy, and you are allowed to remain in possession until the landlord exercises the right to end the month to month tenancy with a properly served written thirty day tenancy termination notice.

    Of course you and your co-tenant mistakenly created this mess. No tenant is entitled to the return of the security deposit before the end of the lease. The recognized standard reasonable time in New York for the return of the security deposit is thirty days after the end of the lease and after the tenant's departure. That is so because the landlord is allowed to inspect the apartment for damage caused during the tenancy that is beyond ordinary expected damage from use as a living space. New York State law does not have a statutory defined period to return the security deposit and so landlords and tenants often provide in the lease for the return and the landlord's right to use the security for allowed repairs. When a security deposit is held in a bank account the bank usually takes up to thirty days to produce a check for the tenants.

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  • How can I evict an adult son who is physically and mentally abusive to me and my wife from my apartment in NYC

    Son is 22 years old. We have been forced out of the apartment due to his dangerous behavior. He has been acting up for the last 6-7 years. He has been hospitalized for mental problems. Refuses treatment.

    Steven’s Answer

    Dear NYC Parent:

    A parent could employ an form of summary holdover proceeding used by other persons with an unwanted occupant in their home such as a licensee, or a roommate holdover proceeding. Getting into Housing Court will only get you to the place you should already have started with either NYC Adult Protective Services or NYC Office of Mental Health. A Housing Court judge will bring APS into the case ( since your attorney is required to inform the judge of your son's disability) and halt the eviction proceeding until the City locates a suitable adult residence for your son. There is no way you will secure a judgment evicting a mentally disabled adult son without also finding proper placement.

    You could also consider using an Article 81 Mental Hygiene Law proceeding for appointment of a guardian who may have the power to compel an involuntary commitment. You seem to have sufficient grounds.

    Contact an attorney and discuss your situation to decide your legal strategy.

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  • Am I obligated to pay for bed bug removal services that my land lord contracted?

    About 2 months ago we found a bed bug in my apartment. I immediately informed my landlord who told me they would have someone come out, though they have never had this problem before. About 4 days later they had someone come out and powder the pla...

    Steven’s Answer

    Dear Syracuse Tenant:

    You are living in one of the cities in the entire USA most impacted by bed bugs.

    See: http://www.syracuse.com/news/index.ssf/2015/04/what_are_the_27_cities_with_more_bedbugs_than_syracuse.html

    Perhaps this is due in part to the failure of local property owners to engage competent extermination services and a hands-off approach to building maintenance.

    The general proposition is that a landlord is responsible for building maintenance and that includes eradication of insect infestations. So paying for extermination is a landlord and not a tenant obligation. You could check the guides at my AVVO profile for more bed bug information.

    Meanwhile, the process does require a lot of hard work by the tenant to help assure that the extermination efforts do kill all adult bed bugs within the building. You could read more at: http://ongov.net/health/bedbugs.html

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  • How is a counterclaim filed in NYC Housing Court?

    Is there a special form that is used for a NYC Housing Court counterclaim?

    Steven’s Answer

    Dear Jamaica Tenant:

    A tenant asserts counterclaims at the time the tenant answers the petition. The Housing Court published an online do-it-yourself program for NYC tenants at: http://www.nycourts.gov/courts/nyc/housing/int_nonpayment.shtml

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  • Applying my security deposit to my last month's rent in NYC

    If I have been month to month for a year at my current apartment and if my Landlord has given me no indication of when he'll return my security deposit can I apply my security deposit as my last month's rent? I will have no ability to pursue him i...

    Steven’s Answer

    Dear New York Tenant:

    I concur with the other three answering attorneys. Your landlord is "obliged" to refund the deposit made at the inception of the tenancy since the money tendered as security is your (the tenant's) personal property. Absent a written agreement between you and the landlord where you turn over your interest in the security deposit, the landlord cannot take (convert) the security deposit for its own use. Aside from the reality that would constitute a civil law "conversion" doing so could cause the landlord a criminal law theft charge. So if leaving without paying is your plan work this out with the landlord.

    The landlord may not go along with your idea. The security deposit is designed as a legal and ready source of money the landlord may consume to restore the apartment if left with any damage above ordinary expected wear and tear. If the landlord takes the security in lieu of the last month rent, then the landlord is without a remedy to pay for repair to the apartment. Suing you in Small Claims Court after you depart for overseas.

    Likewise, if you are sued and do not defend the landlord will have a chance to prove a claim against you without you having a chance to defend. You may find a judgment entered against you for far more than the landlord may prove had you defended the lawsuit.

    So those are your risks.

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  • Can i sublet my rent stabilized apt to my partner (with permission) and renew the lease w/out a non-primary residence charge?

    My lease is up in January 2016, I plan on subletting starting next month (after we submit the agreements and forms to the landlord for approval). I would like to return to the apartment within 2 years and plan to maintain my voting, driver id,...

    Steven’s Answer

    Dear Brooklyn Tenant:

    Your question suggests you are misinformed about the process for gaining consent for a sublet in a Rent Stabilized tenancy. Ordinarily, a tenant cannot sublease to a person already residing in the apartment who has a family relation with the tenant. The ordinary sublease (request consent) process takes longer than thirty days to complete from the submission by the tenant to the landlord of the letter stating intent to sublease along with a full executed copy of the sublease agreement. If your landlord has legal counsel, you and the proposed subtenant should expect to complete a complex questionnaire (fairly standard now from law firm to law firm). A tenant with a permanent job away from NYC is not likely ever to return to live in the apartment as a primary residence. A tenant subleasing an apartment is ordinarily not able to come "home" on weekends since doing so is antithetical to the sublease concept. A sublease is a full conveyance of the right to possession of the entire leased premises from the tenant to the subtenant. That leaves the ordinary tenant without a right of return until the end of the sublease term.

    Generally, when a lease renewal comes during the term of the sublease the tenant does not have an issue. A tenant permanently employed at some location that does not allow the tenant to reside in the apartment as primary residence will face the prospect of a challenge. There is no such thing as "major fines." A tenant defending a right ti a lease renewal does not need to vacate in thirty days.

    You would benefit with an attorney working with you in selecting a subtenant and crafting your letter of intent.

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  • How much can a landlord raise my rent to renew my 1 year lease.

    I'm living in an apartment whose rent is currently $1036.00 a month. I received a renewal lease with the new rent increasing to $1200 a month. This seems to be a lot since generally my lease renewals upped my rent about $20-$30. Is this normal? Ca...

    Steven’s Answer

    Dear Brooklyn Tenant:

    Only Rent Stabilized tenants are protected by Rent Guideline Board orders for legal rent increases for a renewal lease.

    The new RGB order issued June 29, sets the legal renewal rate for leases coming due for renewal on or after October 1 at 0% for a one year lease renewal and at 2% for a two year lease renewal.

    If your tenancy is not Rent Stabilized you and your landlord are free to agree or to disagree on a lease but if not Rent Stabilized you also risk losing your home if you cannot come to terms.

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  • Do I risk losing my NYC rent-stabilized apartment if I live part of the year and pay taxes in Florida?

    I currently live in a NYC rent-stabilized apt. Next year, I want to retire and live 6 months of the year in a home in Florida. Upon retirement, I will begin withdrawing from my 403(b) retirement account. To save on taxes, I'd like to pay taxes as ...

    Steven’s Answer

    Dear New York City Tenant:

    No one could say with certainty that you would lose a lawsuit in the NYC Housing Court if the landlord decided to refuse a renewal of the Rent Stabilized lease on a claim the apartment is not your primary residence. You did state two elements that may very well tip the lawsuit in favor of your landlord. Before you embark on your dual residency plan seek guidance from an attorney by a personal and confidential consultation.

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