LL taking me 2 court 4 rent. My car died on way 2 court-I called but judge ruled 4 eviction-how get back on calendar-file what?

Asked 11 months ago - Hewlett, NY

I am late in my paying rent and my landlord is taking me to court. On the way to court, my car broke down and I missed the court date. I called the court but the judge still ruled for eviction. What do I have to do, what form or motion do I have to file to convince the judge to reopen the case and put it back on the calendar? Anything that I should include like I have 2 kids that would help my cause? Do I file it in person or do I fax it in? Thank you in advance.

Attorney answers (4)

  1. Mitchell Aaron Nathanson

    Pro

    Contributor Level 15

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    Answered . You can file an Order to Show Cause to vacate, but you must present an excuse for the default as well as a meritorious defense. Depending on the Judge, it may or may not be granted.

    I do NOT know you. I am NOT your lawyer. This answer is provided for the general public who may have similar... more
  2. Eric Edward Rothstein

    Contributor Level 20

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    Answered . You can try an Order To Show cause to vacate your default. You may need to show a reasonable excuse for not appearing (your car breaking down) and a meritorious defense to the action. If you owe rent you may have a hard time unless you pay up.

    I am a former federal and State prosecutor and have been doing criminal defense work for over 17 years. I was... more
  3. Steven Warren Smollens

    Contributor Level 20

    Answered . Dear Hewlett Tenant:

    An Order to Show Cause is made in person at the Courthouse, usually on forms provided by the court for persons acting without an attorney, and to be effective, the judge must sign (that is Order) the Order to Show Cause.

    A tenant may attach documents to the tenant affidavit that tend to support both the tenant's reasonable excuse for the default (your proof would be the car on the way to court break down evidence ) and for the defense of defective housing conditions based on a breach of the statutory warranty of habitability ( such as proof of a violation based on an inspection about the defective condition, or proof of notice by you to the landlord of the defective conditions in the home, photographs if you have photos.)

    Remember that every document you attach to your affidavit needs a set of copies for the original order to show cause, for your copy and for the landlord's copy. In the event the judge does sign the order you must serve a duplicate of the original court papers on the landlord (or the attorney if the landlord has a lawyer)

    Other than paying the rent now (the judgment amount, or a written agreement from the landlord consenting to vacating the default judgment and restoring the case to the calendar) New York law allows only this method to deal with a judgment entered based on a default in appearing in court.

    In New York there is no appeal from a default judgment.

    The other attorneys are correct. A motion by Order to Show Cause (other than an agreement made between the parties consenting to vacating the default in appearing) seeking an order to vacate the default based on the two legal requirements: A plausible excuse for the default, and a defense on the merits.

    In a nonpayment case, the tenant should have joined issue with an answer that asserted the defenses based on a breach of the warranty of habitability, failure to repair and existence of dangerous and defective conditions in the home.

    Often, the court will condition the Order to Show Cause upon a deposit of the rent due into court. Perhaps this may be simpler to pay the judgment amount now, and that takes care of the case, and afterward seek affirmative assistance from the local code enforcement to compel the landlord to make repairs.

    Rent withholding in New York is always a risky proposition without an attorney as the result could be an accidental eviction, a judgment, lose of home and no chance to defend the tenancy.

    Good luck.

    The answer provided to you is in the nature of general information. The general proposition being that you should... more
  4. Brandy Ann Peeples

    Pro

    Contributor Level 19

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    Answered . You can always file an appeal, but frankly, if you owe rent and haven't paid it, it's not likely that you can defend the action. A landlord does not have to allow you to live rent-free.

    Consult an attorney in your area regarding your options.

    DISCLAIMER: Brandy A. Peeples is licensed to practice law in the State of Maryland. This answer is being provided... more

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