I'm coming up for a first appearance before a NYC Housing Ct. Judge, and need to file several motions related to the case. A prior court date was adjourned by consent, having only met briefly with the Court attorney. I'm unclear as to whether there would be further adjournments allowed before trial.
I wanted to take a stab at a Motion to Dismiss. At the same time, I need to file an Amended Answer. One thing that puzzles me is would a lawyer file both those motions at the same time to be heard on the same date? It seems to me that moving for an amended answer is something of an admission that you don't expect to succeed at having the case dismissed. As lawyers, would you file both of these at once?
I also want a 3rd party enjoined, but am unclear as to the mechanism by which to do it.
The 3rd party is the Co-op board of an apt. building. I feel they must be there since repairs cannot fully be addressed without their presence. Under those circumstances would you be asking for a dismissal since they're a necessary party not named in a landlord's action, or would you simply move to enjoin them?
Landlord / Tenant Lawyer
Dear New York Tenant:
There is no third party practice in the Housing Court. The cooperative board is not a proper party. The cooperative corporation may be a party in a landlord and tenant case, but the tenant of a shareholder is not in privity of contract with the apartment corporation.
An answer may be amended without a court order if the amended answer is served withing twenty days of the original answer.
Most allowed grounds for dismissal are waived if not either first raised in the answer or in a pre-answer motion to dismiss.
Your pleading (the answer) is a necessary exhibit to a motion to dismiss. So if you do not want to rely on your original answer then the motion to dismiss would seem premature. After an answer very few grounds survive for a motion to dismiss.
See the statute at:
">>>(e) Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading. A motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted; >>>"-
See more at: http://codes.lp.findlaw.com/nycode/CVP/32/3211#sthash.FRQicYjG.dpuf
For an Amended Pleading:
">>>a) Amendments without leave. A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. (b) Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. (c) Amendment to conform to the evidence. The court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances. (d) Responses to amended or supplemental pleadings. Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented. Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds. >>>"-
See more at: http://codes.lp.findlaw.com/nycode/CVP/30/3025#sthash.i23UN9As.dpuf
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.
If you'd like to know how a lawyer would handle these, you should handle them through a lawyer. You've just admitted that you do not possess the expertise to handle this case unassisted. It is time to bring in an expert. It will be worth your time and money.
This does not constitute legal advice or the engagement of my services as an attorney.