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I was just served with a notice of petition for non payment. I have a legitimate counter claim. Do I need a lawyer to respond

Lynbrook, NY |

I was just served with a notice of petition for non payment. We have several counter claims against the landlord, most importantly being that the sewer main in the building backed up into our apartment and left four inches of sewer water and debris in our home. We lost the majority of our furniture and a ton of personal belongings, including gifts my children had just received for Christmas. They did nothing to help clean up the mess. How do I respond? Do I just show up in court and do I need a lawyer to answer the petition? I just want to get out of this apartment, but due to the hurricane, it has been extremely difficult to find a place. I am trying to stay in the district because my oldest has special needs. Thanks

Attorney Answers 3

Posted

Dear Tenant:

Yes. By all means hire an attorney. You may have valid claims for the property damage, but in a nonpayment proceeding, your property damage claim may be severed or dismissed without prejudice as not being "inextricably connected" to the landlord's claim for possession.

You could have made a claim on the landlord's insurance as your property loss seems due to the landlord's negligence and you may have sued the landlord for your loss in Small Claims Court. If you had done so, you would not have withheld your rent to recover for that loss.

You may actually have facts that could support a counterclaim based on a breach of the warranty of habitability (also a defense to the nonpayment claim) but you do not seem to be aware of that real potential counterclaim or of that real defense to a landlord's nonpayment claim. You cannot just show up in court and orally raise complex defenses and counterclaims.

Hire an attorney because you have real rights.

Good luck.

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.

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Asker

Posted

Thank you. We will hire an attorney. The whole issue is disgusting. We informed the landlord in writing that we would no longer be paying rent due to the damages and their negligence. I knew they would file court papers, we just weren't sure how to correctly respond. Thanks again

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. Good luck,

Posted

It is always better to hire a lawyer.

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Posted

Of course it would be best if you retained an attorney. What you have described is a constructive eviction which is a defense to apying rent. You need to serve the landlord with an answer to the petition alleging your affirmative defense of constructive eviction. I suggest you hire an attorney immediately.

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3 comments

Asker

Posted

do i have to answer the petition through the courts or do I just advise them in writing by certified mail of my intended defense? I called an attorney this morning and he said we would easily be able to represent ourselves on this issue and that he would represent us if we wanted, but in the essence of saving money, we could submit our defense on our own. I am just nervous that something will go wrong. We have lived here for 8 years and seven of those years was fine. This past year has been a downward spiral of events with this landlord. Thanks again

Richard J. Chertock

Richard J. Chertock

Posted

if you want to represent yourself you could call the clerk of the court and they will help you put in the answer - it has to be served on the attorney and the court.

Asker

Posted

Thank you. I called there and they told me I have to answer in person on my scheduled court date. I am going to hope for the best. I am not a stupid person and I know we have a legitimate defense and counter claim. I also know they have excellent. Thank you for your time

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