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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?

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. 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 for informational purposes only and the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship. For legal advice relating to your specific situation, I strongly urge you to consult with an attorney in your area. NO COMMUNICATIONS WITH ME ARE TO BE CONSTRUED AS ARISING FROM AN ATTORNEY-CLIENT RELATIONSHIP AND NO ATTORNEY-CLIENT RELATIONSHIP WILL BE ESTABLISHED WITH ME UNLESS I HAVE EXPRESSLY AGREED TO UNDERTAKE YOUR REPRESENTATION, WHICH INCLUDES THE EXECUTION OF A WRITTEN AGREEMENT OF RETAINER.


  2. 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 queries. The answer provided is NOT definitive. I do NOT know all of the facts of your case and NO attorney-client relationship is established. Please do not use my answer to tell your lawyer what to do. Free advise is worth exactly what you are paying. Trust the lawyer who is charging you for his/her time and expertise. If you can no longer trust your lawyer, then hire someone else. I am always interested in new clients and business opportunities and would welcome your call or email to discuss matters further. For more information, please feel free to visit my website or schedule an appointment.


  3. 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 named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


  4. 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 try to avoid a bad outcome if you can.

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