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Steven Warren Smollens

Steven Smollens’s Answers

8,927 total


  • Oral trail or submission trial after submitting the motion to renew and re-argue? Housing court*

    I had a trial through I believe it's called submission (both sides submitted to courts why they should win)? Now I'm thinking about doing a motion to renew and re-argue because my previous lawyer failed to state in the motion, cross motion, or su...

    Steven’s Answer

    Dear New York Tenant:

    If Housing Court entered a final judgment in favor of your landlord upon an exchange of motion papers (it would help if you knew who moved for what particular relief) such as a motion to dismiss from you and a motion for summary judgment from the landlord, the attorneys did argue those motions in court prior to submission for a decision.

    Again, as in my earlier answer, no one can tell you without a review of the record, if you have any ground to reargue or any ground to renew. Based on your statement you are not entitle to gain reargument or renewal since the rent overcharge claim was not presented to the court on the original set of motions.

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  • What are my rights as a subtenant when leaseholder has taken my rent money for 3 months and not paid landlord?

    I entered a subtenant situation with a leaseholder back in August. We have a written agreement regarding the sublet, but I recently discovered that the leaseholder has not paid rent in 3 months. However, she didn't notify me or the other two subte...

    Steven’s Answer

    Dear New York Tenant:

    The "fraud" alarm should have sounded the moment you discovered the tenant already had more than one roommate when you bought into the scheme to turn a rented apartment into a rooming house. A tenant is not allowed more than one roommate no matter how many rooms in the apartment. None of the occupants are subtenants, no matter the words used in your agreement with the tenant. If the apartment is Rent Stabilized there is a chance all roommates are overcharged in rent.

    If you are not overcharged, you received the benefit of the rent you paid--that is--a place to reside. Your promise to pay rent is not dependent on the tenant paying her rent.

    You are wise to fear eventual eviction when the landlord gets around to dealing with the tenant. If you are not overcharged you have power to change the tenant's behavior by holding on to your rent payment. In three months you will be even with the tenant. You could then move out without more fear of being cheated. Based on your statement your tenant is not likely to sue a roommate who is not paying rent and expose her fraud in a lawsuit brought in the Housing Court.

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  • Unreasonable assignment denial, what are further steps?

    We are moving to another statue due to job relocation. We still have 6 months left on the lease. Our landlord is allowing us to sublet (not really a good option since we are never coming back). The landlord has refused to grant us an assignment wi...

    Steven’s Answer

    Dear New York Tenant:

    The subject of remaining liability on a lease after a tenant provides notice of cancellation due to a landlord's unreasonable refusal to allow an assignment is more often addressed as an affirmative defense by the former tenant in a lawsuit initiated by the landlord seeking money damages for rent based on a breach of lease.

    Whether that legal battle occurs or not is a business decision by the landlord. If the lost rental income is not substantial the landlord may not bother if collection of a money judgment is not likely. A rent stabilized tenancy surrender should have secured the landlord's consent, since the successor tenant's rent is greater than the rent of the lease quitting tenant.

    You omitted the nuts and bolts from your statement so it is difficult to assess whether the landlord would even sue and whether it would be worth your state.

    As a practical matter, if the landlord were willing to accept a six month sublease knowing you were not coming back, you should have grabbed that chance. An assignment of a lease in a Rent stabilized tenancy is more complex. With six months left to your term, you were on the cusp of the beginning of the window period for the offer of the next renewal lease. With an assignment the replacement tenant could select a one-year lease renewal and continue to pay the same rent as you pay for your current lease (http://www.nycrgb.org/html/guidelines/orders/order47.html)

    I would suggest you allow an attorney to review your documentation for a thorough analysis of what you should do in this situation.

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  • How can I go about stopping evication and ask for more time to find another apartment? 10 days is such a short notice.

    I have received a 10 day quit notice from Landlords attorney (asking me to vacate apartment before or on 02/10/2016 due to my roommates passing. My name was not on lease, although I have bills with my address to show I reside at address.

    Steven’s Answer

    Dear New York Tenant:

    Correct my understanding of your question in case I am wrong, but I gather that your "roommate" was the tenant named on the lease, and you are a person who lived in the apartment with the tenant and shared the rent expense with the tenant. If the tenant was Rent Stabilized, and you lived with the tenant for two or more years (or one year if you are disabled or a senior citizen) you cannot contemplate moving or giving up your occupancy without exploring with a tenant rights attorney if you have a basis to claim on your own a successor rent stabilized tenancy. If you have a legal right to succession, the ten day notice to quit is merely your method for letting the landlord start a court case where you go about defeating the landlord and securing a succession rent stabilized tenancy.

    Moreover, if the lease did not expire, the landlord has no direct claim against you at all. The lease passed on to the Estate of the deceased tenant. The landlord may make a demand upon the personal representative of the Estate to remove you from the apartment for the duration of the lease or the landlord would take a further step and terminate the lease. But that case is against the representative of the Estate, never against you directly with a ten day notice to quit.

    Not only is the landlord stuck with the Estate taking over for the deceased tenant, the landlord may also get caught up in a request by the Estate to sublease or assign the lease. The representative of the Estate has a bundle of rights to exploit to thwart the landlord's effort to gain back the apartment quickly. Check out: http://codes.findlaw.com/ny/real-property-law/rpp-sect-236.html

    So go ahead and get your self an experienced tenant rights attorney.

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  • Can my neighbors be charged for smoking in my doorway

    I live in new York state, in an apartment complex, my neighbors open my screen door when I'm not home and blow smoke into my doorway, also in the shared laundry room which seeps into my furnace filling my apartment with smoke making me physically ...

    Steven’s Answer

    Dear Batavia Tenant:

    If all your neighbors did to annoy you was touch your screen door, you would not ask a lawyer. That is not the problem. Your neighbors open your door (why have you not latched the door or closed your outer door when you have these creeps around you?) and disperse a toxic element into your living space. Blowing smoke into your space is the same as leaving garbage, pouring bleach, leaving dog poop, or any other noxious product behind, when invading and entering into your leased space. See a lawyer and call police.

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  • I will do motion to renew and re-argue, but is that my argument? Do I need to stand in front of the judge or is it submission?

    Long story short, my lawyer never submitted documents to prove fraud for my overcharge claim. Now I was told I have to do a motion to renew and re-argue. My question is, when I submit this motion is it used as my argument why the judge should over...

    Steven’s Answer

    Dear New York Litigant:

    Based only on your statement and without benefit of the full record submitted on the original motion, it would seem unlikely that there is a ground for reargument and or a ground to renew.

    You did not identify the court. If in Civil Court or Housing Court, any calendared motion is automatically denied when the moving party does not appear and answer the calendar call. Any reargument or renewal motion seeks "leave" (permission) to reargue or to renew. The motion is timely if made within the same period the aggrieved party may serve a notice of appeal (generally within a thirty day period from entry of the judgment flowing from the decision/order.

    Neither form of motion permits the moving party to raise new issues, facts and arguments. The rent overcharge claim and fraud seem outside the bounds of the original motion and seem not newly discovered material that was not available at the time of the original motion.

    Your lawyer made a decision to omit those claims from consideration by the judge in the original motion. That is a litigation strategy. Parties are allowed to choose their own arguments making some and discarding others. Your lawyer's omission does not by itself support either a claim of entitlement to reargue or entitlement to renew.

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  • How can I protect myself for potential damages? Do I have the right to enter his room without notice?

    I live in NYC and am the lease holder on a three bedroom apartment in which two of the rooms I rent out to tenants not on the lease. The lease is ending March 30th and I have provided written notice to the tenants of the move out date. One of the ...

    Steven’s Answer

    Dear New York Tenant:

    Your ornery roommate has a plan to hold you up for big bucks. He is your responsibility. Check your lease. The lease likely ends on the last day of March; not on March 30. As a NYC tenant, you were entitled to one roommate only, no matter how many rooms in the apartment. If you made money from the roommates, your soon to be former landlord could claim you profiteered in the apartment lease and illegally used your apartment as a rooming house. You had plenty of time ahead of the end of the lease to terminate the roommate's month to month tenancy, and take him to Housing Court if he did not move out.

    He is not a trespasser, but you become a holdover tenant the moment your lease expires and you have not turned over vacant possession to the landlord. The summary holdover proceeding the landlord may start against you and your left over roommate, on April 1, carries the risk that the landlord may invoke a right to have the court decide you are liable for the landlord's attorney fees. You also remain liable to the landlord for the full monthly rent (after the end of the lease known as "Use and Occupancy") until the landlord is able to secure full legal possession by evicting you and the left over roommate. Hence, the roommate holding you up for money to move. Paying him off may be less expensive than paying the landlord extra rent after the end of the lease, and your own lawyer as well as the landlord's lawyer.

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  • If there are 2 people living in an apartment for over 30 years, is the apartment legally consider theirs as a tenant

    If there are 2 people living in an apartment for over 30 years, is the apartment legally consider theirs as a tenant or since they have never paid rent, can the landlord do what they wish, move additional people in, etc We have a landlord who c...

    Steven’s Answer

    Dear Ozone Park Tenant:

    Thirty years occupancy, no lease and without paying rent, limits the status of your tenancy to that of a month to month tenant. If your landlord owns the building you live in and the building has six apartments or more, you may claim that your tenancy is Rent Stabilized if you could show the apartment in its entirety was rented to you.

    Otherwise, you have lived "lucky" all these years since your landlord never took advantage of the right to evict you as a month to month tenant; so the threats mean nothing at all, unless you believe the landlord should have ended the month to month tenancy and sought your eviction in Housing Court.

    If you did not have a lease and you did not pay rent, your landlord was not likely to take care of fixing and cleaning and doing anything in the apartment without you first shoving him into Housing Court. At any time i your thirty year occupancy you had the right to bring in city inspectors to examine and report on the condition of disrepair in the apartment. You also had the right even without paying rent and without having a lease to start a tenant lawsuit against the landlord just for repairs in the Housing Court (an HP Proceeding.)

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  • Leaving without a lease

    Moved into a new house when I get stopped by a man who ends up telling me that he is taking the house back from the guy I'm paying rent to. I tell him I just moved in and I already paid rent and security for the month. My question is what should I...

    Steven’s Answer

    Dear Red Hook Tenant:

    Do you discuss your private business with strangers? Did this person show you a copy of a legal proceeding against the person you believed was your landlord? Did he show you a deed, and identification?

    If you have an interest in remaining in this house get in touch with the person who rented the house to you. By now the printer should have paper.

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