CIVIL COURT OF THE CITY OF NEW YORK Housing Part COUNTY OF NEW YORK __________________________________________Alpha Phi Alpha, Inc. - Alpha Gamma Lambda,

) )

Petitioner, ) Index No. 51206/15

) -against- ) Affirmation in Support of Motion to

) Dismiss Pursuant to CPLR § 3211

Brian King, et al., ) Respondents.

) )

__________________________________________ )

Attorney Affirmation of Truth

Michael R. Nemschick, an attorney admitted to practice before the courts of this state,

hereby affirms under the penalties of perjury that the following statements are true, except those

made on information and belief, which he believes to be true.

A Summary Proceeding Must be Summarily Dismissed Pursuant to CPLR 3211 When Uncontroverted Documentary Evidence is Presented That Refutes the Prima Facie Case

or Otherwise Illuminates Fraud, Misrepresentation, or Frivolousness in the Petition.

1. In the context of summary proceedings, when a respondent submits a motion pursuant to

CPLR 3211, which is accompanied by incontrovertible documentary evidence refuting the peti-

tioner’s prima facie case, the petition must be dismissed summarily. Likewise, when allegations in

a petition are “inherently incredible” and/or “flatly contradicted” by available documentary evi-

dence, a dismissal pursuant to CPLR 3211 is required as a matter of law. See Biondi v. Beekman

Hill House Apt. Corp., 257 A.D.2d 76 (App. Div. 1st Dept. 1999) (dismissing a petition upon the

respondent’s provision of documentary evidence that negated essential facts in the prima facie

case).

2. Further, a petition that is found to contain fraudulent misrepresentations must be dismissed

under principles of equity. See Hegeman Asset LLC v. Smith, 5 Misc. 3d 8 (App. Div. 2d Dept.

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2004) (“[A] petition containing material misstatements should be dismissed as a matter of equi-

ty.”) (citing Hughes v. Lenox Hill Hosp., 226 A.D.2d 4 (App. Div. 1st Dept. 1996)); also see, e.g.,

Jersey Street Associates, LLC. v. Quality Cleaning Corp., 2002 WL 484234 (Civ. Ct. New York

2002) (granting respondent’s motion to dismiss pursuant to CPLR 3211 when it submitted doc-

uments with the motion that negated specific averments in the petition); Kentpark Realty Corp. v.

Lasertone Corp., 3 Misc. 3d 22 (App. Term 2d 2004) (remanding for the purpose of dismissal,

sanctions, and attorney disciplinary referral after petitioners had made fraudulent misrepresenta-

tions to the court).

3. As outlined in the paragraphs below, the documents submitted with this motion, along with

various documents in the Court’s files, flatly contradict and utterly refute the petitioner’s prima

facie case. Additionally, because the same documentary evidence demonstrates that this action is

frivolous and involves fraud, dishonesty, and knowing misrepresentations by the petitioner and its

attorneys, this summary proceeding must be dismissed as a matter of equity.

The Petition Must be Dismissed Because it Fraudulently Represents That the Premises Are Exempt from the Rent Stabilization Law.

4. “RPAPL § 741 requires that a proceeding state the facts upon which it is based. This

generally includes a requirement that the petition assert whether the subject premises is governed

by rent regulation, or the basis for any alleged exemption.” 506 W. 150 St., LLC v. Prier, 2012 NY

Slip Op 51143(U) (Civ. Ct. New York 2012) (dismissing the petition for failure to state a cause of

action when the petitioner failed to allege a meritorious exemption to the Rent Stabilization Law).

Put succinctly, a petition that fails to set forth a colorable exemption to the Rent Stabilization Law

must be dismissed for failure to state a cause of action. See 546 W. 156 St. HDFC v. Smalls, 8

Misc. 3d 135(A) (App. Div. 1st Dept. 2005) (granting a motion to dismiss where the petitioner

there failed to allege a proper basis for exemption to the Rent Stabilization Law); Smiley v. Wil-

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liams, 2009 NY Slip Op. 29394 (Civ. Ct. New York Co. 2009) (same).

5. The petition in this case alleges that the premises are not subject to the rent stabilization

law. As the attached documentation shows, however, that averment is blatantly false and consti-

tutes an effort to defraud this Court. More specifically, the attached registration report -- retrieved

from the publicly sponsored website at www.hpdonline.hpdnyc.org -- indicates that the subject

premises contains six (6) B units and one (1) A unit. See Exhibit A (HPD Building Information for

887 St. Nicholas Avenue, accessed February 12, 2015). Troublingly, the petition provides no

explanation as to why the seven (7) units appearing in the registration report are not subject to rent

stabilization. To be sure, notwithstanding the petitioner’s averments to the contrary, absent a

specific applicable exemption, a dwelling with six or more units presumably falls within the pur-

view of the rent stabilization laws. See Multiple Dwelling Law 286; Acevedo v. The Piano

Building LLC, 70 A.D.3d 124 (App. Div. 1st Dept. 2009) (“We hold that where … the building

contains six or more residential units, it is subject to rent stabilization by virtue of EPTA[.]”).

6. The petitioner’s misrepresentations/omissions in this case regarding rent-regulatory status

of the subject premises is clear chicanery -- considering that this Court has previously ruled that

this petitioner must allege a meritorious exemption to the rent stabilization law in order to state

prima facie case. See Exhibit B (Decision and Order of Hon. Jack Stoller, dated December 17,

2013, stating: “The petition does not allege what the rent-regulatory status of the subject premises

is, in violation of the duty to state the facts of the case and give Respondent notice of potential

defenses.”). Further, the assertion of petitioner’s attorney, Richard St. Paul, that the premises is

comprised of only three units is a complete fabrication that squarely contradicts the petitioner’s

past admission that there are at least six units in the subject premises. See Exhibit C (Decision and

Order of Hon. Sabrina Kraus, dated May 2, 2013, ruling: “[Alpha Phi Alpha] acknowledges there

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are at least 6 units in the subject premises.”). Owing to the petitioner’s failure to state a colorable

exemption to the rent stabilization laws, and notwithstanding Attorney St. Paul’s knowing mis-

representation that there are no more than three units in the premises, the petition must be dis-

missed summarily for its failure to state a prima facie case. See MSG Pomp Corp. v. Doe, 185

A.D.2d 798 (App. Div. 1st Dept. 1992) (dismissing the petition when the petitioner made “mis-

representations of the … rent regulatory status of the premises”).

7. It is important to note that this is the sixth summary proceeding (at least) in the last 30

months in which this petitioner has misrepresented or omitted the rent-regulatory status of the

subject premises. See, e.g., APA v. Joseph, et al. (Index No. 66973/12); APA v. King, et al.

(Index No. 61012/13); APA v. King et al. (Index No. 84948/2013); APA v. King, et al. (Index No.

65163/14); and APA v. King, et al. (Index No. 80493/14)). As the foregoing court files reveal, this

petitioner has repeatedly made the same false claims across a half-dozen or more pleadings. As

such, it is an apodictic conclusion that the petitioner and its attorneys are engaged in a pattern of

fraudulent and frivolous litigation. Indeed, the plethora of fraudulent filings yields an average of

one fraudulent petition every five months, none of which has been meritorious, revealing that the

petitioner and its attorneys are employing litigation simply to harass the respondents. A dismissal

is mandatory upon application of the foregoing facts to the above-cited legal authorities.

The Petition Must be Dismissed Because it Fraudulently Alleges the Existence of a 23-Month Oral Lease Agreement.

8. The petitioner alleges that it entered into an oral lease agreement with the respondents for a

lease term of 23 months, alleging further that the lease has expired, thus entitling petitioner to

possession of the subject premises. Sadly, this is yet another of the petitioner’s knowingly false

averments. Setting aside the reality that such an agreement would be unenforceable by virtue of

the Statute of Frauds (General Obligations Law 5-701), the Court should be advised that this pe-

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titioner has alleged at least five differing lease agreement in the last 25 months, all of which were

untrue in one respect or another. See Exhibit D (APA v. King, et al. – 61012/13) (alleging in

Paragraph 2 (verified petition) a written lease agreement, but omitting the duration and other terms

of the alleged written agreement); See Exhibit E (APA v. King, et al. - 84948/13) (alleging in

Paragraph 2 (verified petition) an oral agreement for January 1, 2013 through January 31, 2013);

See Exhibit F (January 27, 2014 Notice of Termination) (asserting in first paragraph that re-

spondents entered into an oral agreement for January 1, 2013 through May 31, 2013); See Exhibit

G (APA v. King, et al. – 65163/15) (alleging in Paragraph 3 (unverified petition) that respondents

entered into an oral agreement for January 13, 2013 through April 14, 2014). The five separate

false pleadings regarding lease agreements over a 25-month period reconfirm this petitioner’s

tendency to file, on average, a false pleading every five months. While it is true that only two of

the past documents are actually sworn, all four of the previous documents share the commonality

of contradicting the petitioner’s current averment in the instant petition that a 23-month oral

agreement was entered in early 2013. Owing to the fact that the past documents, which all orig-

inate with the petitioner, flatly contradict the allegations in the instant petition, this summary

proceeding must be dismissed pursuant to CPLR 3211. See Biondi v. Beekman Hill House Apt.

Corp., 257 A.D.2d 76 (App. Div. 1st Dept. 1999) (dismissing a petition upon the respondent’s

provision of documentary evidence that negated essential facts in the prima facie case). Similarly,

the fact that the historical pleadings, when compared with the current petition, reveal nearly a

half-dozen fraudulent pleadings across the last 25 months, the instant petition must be dismissed as

a matter of equity. See Hegeman Asset LLC v. Smith, 5 Misc. 3d 8 (App. Div. 2d Dept. 2004)

(“[A] petition containing material misstatements should be dismissed as a matter of equity.”)

(citing Hughes v. Lenox Hill Hosp., 226 A.D.2d 4 (App. Div. 1st Dept. 1996)); also see Kentpark

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Realty Corp. v. Lasertone Corp., 3 Misc. 3d 22 (App. Term 2d 2004) (remanding for the purpose

of dismissal, sanctions, and attorney disciplinary referral after petitioners had made fraudulent

misrepresentations to the court).

The Petition Must be Dismissed Because the 30-Day Notice of Termination Was Not Served in Compliance With the Provisions of the RPAPL.

9. Proper service of a predicate notice is a prerequisite to instituting summary proceedings,

and the failure to effectuate proper service of a predicate notice requires dismissal of the pro-

ceedings. Kiamie-Princess Marion Realty Corp. v. Lipton, 20 Misc. 3d 423 (Civ. Ct. New York

2008) (dismissing holdover proceedings after finding that the 30-day termination notice was not

served in compliance with statutory provisions); House of Bowery Corp. v. Ensley, 182 Misc. 2d

471 (Civ. Ct. New York 1999) (same).

10. In the instant case, the petitioner has submitted an affidavit of service stating that deponent

John Burnett served a 30-day termination notice as a prerequisite to these proceedings. Im-

portantly, John Burnett is the landlord and managing agent of the subject premises. In fact, he

appeared personally along with his attorney during the January 29, 2015 appearance before Judge

Stoller. Consequently, the petition must be dismissed as a matter of law because, as New York’s

highest court has long held, a suing party is ineligible for undertaking personally to serve process

upon an opposing party. Wein v. Thomas, 51 N.Y.2d 862 (New York 1980) (affirming dismissal

of an action because petitioner served the initiating papers in violation of CPLR § 2103, which

authorizes a person who is “not a party” to serve process); Kedzielawa v. Smolinski, 70 N.Y.2d

604 (New York 1987) (same); also see Zamar v. Fair, 153 Misc. 2d 913 (Civ. Ct. New York 1991)

(dismissing a holdover proceeding after determining that the 30-day termination notice was served

by the petitioner in violation of CPLR § 2103). Because Mr. Burnett is a party to this action, his

affidavit, wherein he alleges to have effectuated personal service on one respondent, and thus

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substitute service on the other respondents, is invalid as a matter of law. Accordingly, the petition

must be dismissed due to defective service of process. Berkeley Associates Company v. Di Nolfi,

122 A.D.2d 703 (App. Div. 1st Dept. 1986) (dismissing summary proceedings where petitioner

failed to effectuate service in accordance with statutory provisions).

11. Importantly, this is the third time (at least) that this petitioner has faced dismissal on the

grounds that it filed a false and/or defective affidavit of service. To wit, in APA v. King, et al.

(Index No. 61012/13), Mr. Burnett submitted an affidavit of service wherein he alleged that he

served the respondents a termination notice. See Exhibit H (Affirmation of Michael R. Nemschick

in Support of Motion to Dismiss Pursuant to CPLR 3211, dated May 7, 2013, p.2). After the issue

of his ineligibility to serve the opposing party was brought to the Court’s attention, along with

uncontroverted proof that Mr. Burnett had fabricated the entire contents of the affidavit, the Court

granted the respondents’ motion to dismiss, and the petitioner’s attorney thereafter withdrew the

petition. See Exhibit C, supra (Decision and Order of Hon. Sabrina Kraus, dated May 2, 2013,

ruling: “Motion is granted as unopposed and the Court grants the petitioner’s application to dis-

continue without prejudice.”).

12. Another example where this Court discovered that this petitioner filed a false affidavit of

service can be found in APA v. King, et al. (Index No. 76888/14), wherein an employee of peti-

tioner named Gunther Stroman falsely averred that he served a 10-day notice via conspicuous

placement. The presiding judge detected the fraud when it came to her attention that the date of

service indicated in the affidavit of service was the same date that the 10-day notice was set to

expire by its own terms. The judge summarily dismissed the case upon detecting the fraud there.

13. Interestingly, petitioner’s most recent attorney, Richard St. Paul, has refused to withdraw

the instant petition, whereas he maintains that the respondents in this case must go to trial to prove

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the several defenses raised in this motion. Not only do the strictures of CPLR 3211 hold other-

wise, but holding a trial simply for the purposes of reaching a foregone conclusion would be a

prodigal waste of judicial resources and a waste of my time as well as the three respondents’ time.

Veritably, the very document that proves service was not properly made in this case is the peti-

tioner’s own sworn statement, which is attached to the petition itself. No trial procedure can re-

verse that fatal sworn admission. Fortunately, CPLR 3211 permits trial courts to assess whether a

petitioner has stated a prima facie case before subpoenaing witnesses and conducting a trial on the

merits. And where, as here, the petitioner has submitted a document (Burnett’s affidavit of ser-

vice) that establishes a complete defense to the proceedings, CPLR 3211 requires the Court to

dismiss the action in conservation of judicial resources and in the interests of justice. Poetically,

the affidavit tells on itself. That is, it tells the truth about a lie – as in the liar’s paradox. And most

instructively, it handily illustrates what is meant by the phrase: pleading oneself out of court. As

such, and notwithstanding Mr. St. Paul’s desire to have a trial on the merits, the instant summary

proceeding must embrace the same fate of its 2013 forebear: summary dismissal at the pleading

stage. See Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.S.2d 786 (New York 1980)

(affirming the Appellate Division’s order holding that a landlord’s notice of intention to terminate

occupancy for a tenant’s unauthorized conduct was fatally defective when extrinsic evidence

showed that the allegations stated in landlord’s notice were false).

The Petitioner Must be Sanctioned Here Because This Litigation is Ostensibly Frivolous, was Brought to Harass the Respondents, and has Been Needlessly Replicated,

Prolonged, and Extended Despite There Being Zero Support for it Under the Law.

14. 22 NYCRR 130-1.1 is tailor made to address frivolous conduct such as the petitioner’s

conduct herein. That rule authorizes the Court to impose financial sanctions against a par-

ty/attorney who engages in frivolous conduct. The same rule authorizes the Court to order the

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reimbursement of expenses and attorneys’ fees to the non-offending party/attorney who incurred

costs as a result of the misconduct.

15. Conduct under 22 NYCRR 130-1.1 is defined as frivolous if: (1) is it completely without

merit in law and cannot be supported by a reasonable argument for an extension, modification or

reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the

litigation, or to harass or maliciously injure another person or entity; or (3) it asserts material

factual statements that are false. See 22 N.Y.C.R.R. 130-1.1(c).

16. Throughout the instant proceeding, and in at least six prior summary proceedings between

petitioner and respondents herein, the petitioner has intentionally, knowingly, and knavishly

conducted a continuing harassment campaign – marked by paradigmatic fraud and feckless fri-

volity. To clarify, the instant action makes summary proceeding number seven (7) in which the

petitioner has disingenuously called upon the Court only to harass these respondents. Likewise,

the petitioner’s persistent attempts to evict respondents illegally from these rent-regulated prem-

ises are a grievous abuse of the already overburdened NYC Housing Court. To wit, the petitioner

has, over the course of its 25-month campaign, called forth the attention of numerous unsuspecting

Housing Court judges (at least seven (7) different judges, including Supervising Judge Kaplan,

Judge Spears, Judge Kraus, Judge Gonzalez, Judge Hahn, Judge Schreiber, and Judge Stoller) in

furtherance of its pernicious scheme to circumvent the rent stabilization law.

17. To provide an overview of the prior frivolous petitions brought by this petitioner, it is

suitable to begin with the action it brought under Index No. 61012/13 (APA v. King, et al.),

wherein the petitioner attempted to defraud this Court regarding matters of service, rent-regulatory

status, and the nature of the lease agreement. Judge Kraus presided over the matter and dismissed

it upon discovering the prima facie case had been fabricated. Crucially, and as a testament to her

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perspicacity, Judge Kraus drew a pivotal admission from the petitioner in that case, whereby the

petitioner acknowledged that the subject premises are no fewer than six units. See Exhibit C,

supra. Notwithstanding the undeniable fraud she had discovered in those proceedings, Judge

Kraus, in an act of abundant clemency, permitted the petitioner and its attorney to leave the

courthouse without forking over the sanctions, costs, and attorneys’ fees their conduct warranted.

Id. (granting the petitioner’s application to withdraw the fraudulent petition).

18. Amazingly, and as an affront to Judge Kraus’ generous exercise of judicial temperance, the

petitioner brought another frivolous proceeding against the same respondents under Index No.

84948/13 (APA v. King, et al.). In that action, Judge Stoller took the time to draft a written order

(Exhibit B, supra) explaining the quite simple standard for stating a holdover cause of action.

Although the petitioner and its attorney had, again in that action, attempted to defraud the Court as

to the rent-regulatory status, service of process, and the lease agreement, they avoided the con-

sequences of their malfeasance by virtue of Judge Stoller’s patience. Importantly, this was the

second time this Court placed the petitioner and its attorneys on specific notice that the premises

are subject to the rent stabilization laws.

19. Next the petitioner, having had plenty of time to review prior proceedings and court orders

dismissing its petitions, and having had a co-extensive time period to engage competent counsel,

did only the former, attempting to defraud this Court yet again under Index No. 65163/14 (APA v.

King, et al.). In that action, the petitioner and its attorneys managed to extend the pernicious

miasma of their chicanery more broadly – affecting two Housing Court judges (Judge Spears and

Judge Kaplan) as well as a criminal court judge in Richmond County, a criminal defendant in

Richmond County, and a state prosecutor in Queens County. See Exhibit I (Affirmation of En-

gagement by Attorney Brian King, dated July 17, 2014). To the petitioner’s credit, nay shame, its

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two attorneys working in tandem had so meticulously misrepresented the facts in the petition that

they convinced the resolution part judge that the matter was only suited for disposition by a bench

trial. Once the case was brought before Judge Kaplan for trial, however, he quickly saw through

the petitioner’s cavorting allegations and dismissed the case midway through trial -- but not before

imparting advice to the petitioner and its attorneys about what does and does not constitute a prima

facie case. Yet and still, the petitioner and its attorneys have subsequently returned to this Court

several times – asserting each time, as in the instant case, that the subject premises are exempt

from the rent stabilization laws; and failing each time, as here, to state a prima facie case as to any

claim.

20. The petitioner and its attorneys’ general disregard for the law and their fraudulent repre-

sentations in the instant case, viewed against the backdrop of its previous half-dozen or so failed

attempts to defraud this Court via false pleadings, evinces a pattern of loathsome misconduct,

which is precisely suited for sanctions under 22 NYCRR 130-1.1. Indeed, for over two years this

petitioner has employed court procedures to harass the respondents, causing them to suffer costs

and incur legal fees. Likewise, the petitioner has succeeded in repeatedly arresting this Court’s

judicial resources for no better reason than to make it an instrument of a vile harassment campaign

against the respondents.

21. Something is amiss here in the NYC Housing Court: an unfairness – an injustice inherently

built into the court system, whereby landlords are all too capable of invoking the Court’s juris-

diction for the abuse of tenants and the court system itself. Indeed, Mayor DeBlasio and Chief

Judge Lippman are correct in their public remarks about the impact of unscrupulous landlords

upon not just their tenants, but also the NYC Housing Court and the public at large. See Exhibit J

(New York Times Article: “Push to Provide Lawyers in New York City Housing Court Gains

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Momentum”, dated December 16, 2014, accessed at www.nytimes.com). In response to those

abuses, the Mayor has doubled legal spending to fight evictions to $13 million. Id. And the City

Council is currently considering legislation - supported by a national campaign of elected officials

and legal scholars - which would establish a right to counsel in civil matters affecting basic needs,

such as housing. It should be noted that Chief Judge Lippman has pledged his support for remedial

measures in the court system, which he agrees are generally in the public interest. See Exhibit J,

supra.

22. Importantly, the petitioner’s shenanigans implicate the professional standards that govern

the licensed attorneys who have represented it in the various proceedings. See Rules of Profes-

sional Conduct (22 NYCRR 1200.0) Rule 8.4(c) (prohibiting attorney “conduct involving dis-

honesty, fraud, deceit, or misrepresentation”) and Rule 8.4(d) (prohibiting attorney “conduct that

is prejudicial to the administration of justice”). Indeed, the Court should take appropriate action to

discipline the attorneys involved and bring this harassment campaign to end – not simply to relieve

the respondents in this case of abuse of process, but also to deter this petitioner as well as other

landlords from employing mercenary lawyers to harass tenants via vexatious litigation campaigns.

See Rules Governing Judicial Conduct (22 NYCRR, Part 100) 100.3(D)(2) (“A judge who re-

ceives information indicating a substantial likelihood that a lawyer has committed a substantial

violation of the Code of Professional Responsibility shall take appropriate action.”).

23. This case presents a crucial opportunity for this Court to take appropriate action in curbing

the conspicuous unfairness and unjust outcomes that have come to characterize landlord/tenant

procedure in the NYC Housing Court. Indeed, the petitioner and its lawyers have, in the instant

case and past cases, exemplified how well-heeled landlords can employ court procedures to drive

an unprecedented number of NYC tenants into homelessness. It is because of that very real

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problem that Judge Stoller advised Mr. King (Respondent), Mr. Burnett (Petitioner), and Mr. St.

Paul (Petitioner’s Counsel) on the record at the January 29, 2015 appearance that if any fraud or

frivolity on the part of the petitioner is demonstrated by way of this motion, then the Court will,

according to applicable laws, assess sanctions against the petitioner and/or its attorney, and award

the respondents attorneys’ fees.1 Accordingly, because the instant motion demonstrates that the

petitioner has embarked on a relentless campaign of fraudulent litigation for the last two years,

making necessary the instant motion and draining more of the Court’s time, the Court should make

good on its marker by exercising the mandates of equity that are designed to protect the rights of

citizens and the integrity of the court system. Indeed, doing so would be entirely consistent with

the Court’s proven and ongoing commitment to addressing the ills of the current landlord/tenant

regime. See Exhibit K (Letter of Supervising Judge David J. Kaplan, dated August 13, 2014)

(“[P]lease be assured that I will continue to work with my peers and their staff to ensure that we are

all fully cognizant of the conflicting pressures felt by the litigants and attorneys which we serve.”).

The Respondents are Entitled to an Award of Attorneys’ Fees Here Because This Litigation is Ostensibly Frivolous, was Brought to Harass the Respondents, and has Been Needlessly

Replicated, Prolonged, and Extended Despite Finding No Support Under the Law.

24. The shortage of attorneys available to represent NYC tenants is so widely recognized that it

has drawn the attention of Mayor DeBlasio, Chief Judge Lippman, expert legal practitioners,

former jurists, and the New York City Council. See Exhibit J, supra (Hon. Emily Jane Goodman,

retired justice of the New York State Supreme Court, stating: “Housing Court is the most unbal-

anced, unfair and unjust court in our system, and the biggest problem is lack of legal representa-

tion.”). One reason why attorneys shy away from representing indigent tenants is that the im-

                                                            1 At the February 13, 2015 appearance, Judge Schreiber, over the rehashed non-starter objections made by petitioner’s attorney, extended the respondents’ time for filing the dispositive motion to February 27, 2015. Her ruling from the bench was apropos considering that although the petitioner’s attorney announced “ready” for trial at the appearance, the petitioner was not present at the calendar call, thus no trial could in fact proceed.

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probability of fee-shifting awards for frivolous conduct imposes prohibitive risks upon attorneys

willing to represent such tenants. That same improbability casts tenant representation almost

strictly into the realm of pro bono enterprise -- even when the law and facts are completely in a

tenant’s favor. The Court should note that those circumstance breed a helpless brood of citizens,

whom, by virtue of indigence, are doubly disenfranchised. That is, the tenants who are the most

susceptible to landlord overreach are also the most likely to lack legal representation in proceed-

ings that may ultimately cast them out of secure housing and into the throes of wretched home-

lessness. See Exhibit J , supra (Hon. Jonathan Lippman, chief judge of the New York State Court

of Appeals, stating: “It’s a foreign world to them. The tenant doesn’t know what to say, except

‘Judge, help me.’ It puts the judge in a very difficult situation because [he or she is required to be]

neutral. It creates such havoc in the system because it’s an uneven playing field.”).

25. The instant case, although admittedly atypical in a few ways, embodies all that is wrong

with the current system of landlord evictions.2 More specifically, the petitioner here, by simply

fabricating allegations at the outset, and by saying whatever was expedient to invoke the Court’s

jurisdiction on successive attempts, nearly succeeded on one or two occasions in unlawfully de-

priving the respondents of their lawful possession of the subject premises. In terms of rational

behavior, a petitioning landlord seeking to increase its profits is well-advised under the current

system to institute frivolous campaigns of harassing litigation, just like the instant petitioner, be-

                                                            2 More run-of-the-mill cases of frivolous pleadings may be found in one-off exemplars like the following: 4240 Broadway LP v. Matos, Index No. 50663/15 (New York Civ. Ct. NY Co.) (fraudulently naming various tenants living in separate units as subtenants of one targeted unit in order to mount a frivolous illegal sublet claim against tenant in the targeted unit); Rezunova v. Nadig, Index No. 814/14 (Dist. Ct. Suffolk Co.) (landlord’s false claims of rental arrears not dismissed until trial when tenant produced receipts); Renaissance, HDFC v. Abdul-Mani, Index No. 51383/15 (New York Civ. Ct. NY Co.) (after landlord’s attorney discovered that accounting errors gave rise to false rental arrears outstanding balance, attorney continued to litigate the matter and bill the landlord as if he had not dis-covered the error). Even in cases like the foregoing, where the fraud is conclusively shown, sanctions are rarely imposed against offending parties and attorneys’ fees are rarely awarded to non-offending parties; and 8014 Realty LLC v. Murphy, Index No. 91275/12 (New York Civ. Ct. Kings Co.) (landlord sought via fraud to substitute a cor-porate parent for itself after evidence was introduced that the landlord had fabricated facts in the prima facie case and submitted a false affidavit of service).

15 

cause this tactic increases petitioner’s chance of success while decreasing the likelihood of their

exposure. If the courts remain hesitant to order fee-shifting upon discovering such artifice,

landlords will have no better rational choice than to continue employing it and reaping its financial

benefits. As such, the instant case presents an opportunity to set some type of minimal standards

by which landlords will necessarily adjust their rational decision-making. This Court, whose or-

ders have been entirely ignored and flouted, See Exhibit L (Email Message of July 2014, revealing

that the petitioner here, namely John Burnett, attempted to deceive his employees by fraudulently

misrepresenting to them that Judge Kaplan had made rulings in the petitioner’s favor), and who

has had its time wasted repeatedly for almost two years while trying to untangle this petitioner’s

thinly veiled sophistry, now has before it an opportunity to level the playing field. That is, the

imposition of sanctions and fee-shifting in this case will likely send a signal to landlords that the

tipping point has been exceeded and the shenanigan party has finally come to an end. The same

signal will result in fewer fraudulent and/or frivolous lawsuits and, consequently, fewer tenants

being cast out of affordable housing and into the cold, cruel New York City streets. See Exhibit J,

supra (Susanna Blankley, director of housing organization for Community Action for Safe

Apartments, stating: “If we don’t have tenant protections in place and the right to counsel, we’ll

get rid of more affordable housing than will get built.”).

Attorneys’ Fees Application

26. Typically, I will not spend more than 12 hours on a motion to dismiss in housing matters

because the pivotal issues and documents are not usually as copious as those found in the instant

case. However, because this case carries a heightened public interest, imposing upon me an in-

dispensible moral duty, I have spent 31.9 hours over the last two weeks alone preparing all the

materials necessary for bringing the instant motion. To that end, I have spent 9.4 hours re-

16 

searching the law and preparing arguments. I have spent 7 hours drafting the Notice of Motion and

Affirmation and preparing exhibits. I have spent 6.2 hours on public policy research and re-

searching and reviewing news articles. I have spent 5.1 hours reviewing the history of litigation

between the instant parties, including the petitions, affidavits, and court orders that were directly

relevant to this motion. And I have spent 4.2 hours conferencing with my client, Mr. King, in

regards to all the materials herein and developing a strategy for this motion. Finally, I have ex-

pended many additional hours representing the respondents in several of the previous frivolous

cases brought by petitioner. I will likely spend several additional hours personally appearing in

this action and drafting a reply, if helpful, to petitioner’s opposition to this motion.

27. My usual professional hourly rate is $300.00 per hour. Because I have already spent a total

of 31.9 hours responding to the petitioner’s frivolous pleadings in this proceeding alone, I am

respectfully requesting that this Court enter an award against the petitioner pursuant to 22 NYCRR

130-1.1 for reasonable attorneys’ fees in the amount of $9,570.00, plus an award reimbursing costs

and additional time that I may expend prior to the disposition of this matter.

28. If there are questions and/or disputes as to whether my hourly rate is justified in light of my

experience, or if there are questions and/or disputes as to whether the hours I billed in bringing the

fatal defects and the fraudulent conduct outlined herein to the Court’s attention, I would be happy

to submit additional details about my experience and the efficient methods I employed to inves-

tigate this matter and bring it to the Court’s attention. If the same is not satisfactory to the peti-

tioner, the Court should schedule a hearing to determine the appropriate amount of attorneys’ fees.

East Harlem Pilot Block v. Serrano, 153 Misc. 2d 776 (Civ. Ct. New York Co. 1992) (ordering a

hearing to determine whether counsel engaged in frivolous litigation practices). However, not-

withstanding my advanced consent to provide additional information or participate in a hearing on

17 

attorneys’ fees, I reserve the right to obtain additional fees in connection with the additional hours

of labor involved with the latter. See Park West Associates v. Ambroise, N.Y.L.J., 11/14/97, p.25,

col. 3 (App. Term 1st Dept. 1997) (“[Respondent] is entitled to recover for the additional attor-

neys’ fees incurred in proving the amount of the fee, including the services rendered at the fee

hearing and for the successful prosecution of [a subsequent] appeal.”).

Conclusion

Pursuant to the authorities, circumstances, and arguments set forth above, respondents

respectfully request that the Court enter an order dismissing this summary proceeding pursuant to

CPLR § 3211, entering a judgment in favor of the respondents, imposing sanctions upon the pe-

titioner in the amount of $10,000.00, awarding the respondents reasonable attorneys’ fees in the

amount of $9,570.00, and providing the respondents any additional relief that the Court deems

appropriate.

Dated: February 18, 2015

Attorney(s) for Respondent(s)

Michael R. Nemschick Michael R. Nemschick, Esq. K-FIRM LLP 5507-10 Nesconset Hwy. #148 Mount Sinai, NY 11766 (631) 413-2440 (phone) (631) 419-7435 (facsimile)

.PD Building Info https:/lhpdonline.hpdnyc.org/HPDonline/se!ect_ application.aspx

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Head Officer 06/26/2014 BlACKMON LARRY 200 WEST

09/01/2015 136TH ST 2A NY

Officer 06/26/2014 BURNETT JOHN 8

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Corporation 06/26/2014 ALPHA GAMMA 8 WEST

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CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART F ------------------------------------------------------------- x ALPHA GAMMA LAMBDA CHAPTER,

Petitioner/Landlord,

- against -

BRIAN KING, Respondents/Tenants.

------------------------------------------------------------ x Present: Hon. Jack Stoller

Judge, Housing Court

Index No. 84948/2013

DECISION/ORDER

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Order To Show Cause brought by Respondent.

Papers Numbered Order To Show Cause and Supplemental Affidavits Annexed.......................... 1

Upon the foregoing cited papers, the Decision and Order on this Motion are as follows:

This proceeding was dismissed on non-appearance of Petitioner when the petitino was

first noticed to be heard. Petitioner now moves to vacate the dismissal. The Court can grant

relief from a determination on default on a showing of a meritorious cause of action and a

reasonable excuse for the non-appearance.

The petition does not allege what the rent-regulatory status of the subject premises is, in

violation of the duty to state the facts of the case and give Respondent notice of potential

defenses. Randall Assocs. LLC v. Davis, 20 Misc.3d ll 16A (Civ. Ct. N.Y. Co. 2008).

Moreover, the petition pleads that a month-to-month tenancy was terminated, but no thirty-day

notice pursuant to RPL §232-a is annexed, nor does the petition allege that it has been served.

1

., ' ·' ' .

Accordingly, the Court does not find that a meritorious cause of action has been pied and the

Court denies the motion to vacate the default determination dismissing this proceeding.

This constitutes the decision and order of this Court.

Dated: New York, New York December 17, 2013

2

HON. JACK STOLLER J.H.C.

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CIVIL COURT OF THE Cl1Y OF NEW YORK COUN1Y OF NEW YORK: HOUSING PART

ti;~~~~s· , ;~~ ........ -----------------,X Index No.:(o \ O [ 2 l)Li 2 0{ 5 ALPHA PHI ALPHA - ALPHA GAMMA LAMDA CHAPTER INC.,

-against-

BRIAN KING 887 St. Nicholas Avenue - 3"1 Floor New York, NY 1003 2

"JOHN DOE" and "JANE DOE"

Petitioner,

Respondent,

Respondent.Undertenant.

Fir.st nmnl:' o(Tetlflnt and/or Undt>rtenant hein~ flctitlou:: and unknown to ~titiont>r Pfr.-«m inte-nde<l l1t'inf:!" in po~-;ion o( the premiSt's h1trt'in dt<$Crlhe-d*

~~~~~~~~~~~~~~~~~~~.x

PETITION Hold Over - Dwelling

Petitioner's Residence 887 St. Nicholas Avenue New York, NY 10032

THE PETITION ALPHA PHI ALPHA - ALPHA GAMMA LAMDA CHAPTER INC., the owner and landlord of the Premises, upon information and belief shows that:

1. The undersigned POLANCO & ASSOCIATES, PLLC., is the attorney for the Petitioner in this proceeding.

2. The Respondent, BRIAN KING, is the tenant of the Premises described below, who entered into possession under a written rental agreement between Respondent as tenant and Petitioner as landlord which has since expired, and Respondent has continued in possession thereof pursuant to month to month tenancy. The Respondent "John Doe" and "Jane Doe" are the Undertenant of the aforesaid Respondent tenant.

3. 111e Premises are described as Follows: all rooms, 887 St. Nicholas Avenue, 3"1

Floor, New York, NY 10032. The Premises are situated within the territorial Jurisdiction of the Civil Court of The City of New York, County of New York.

4. The term for which said Premises were rented by the Respondent tenant expired on February 28, 2013.

5. Prior to the expiration of said rental agreement there was due to landlord from Respondent tenant as follows: $67.750 for January 2013; $800.00 for February 2013; $800.00 for March 2013_

Respondent tenant has defaulted in payment thereof, and total rent in arrears as of the date hereof is $1,667 .75.

6. Respondents hold over and continue in possession of premises without landlord's

permission and after said default.

7. The Premises are not subject to rent control or the Rent stabilization Law of 1969,

as amended by Chapter 576, Laws of 1974, as amended by Chapter 403, Laws of 1983, by reason

of the fact that the building in which the Premises are located is a multiple dwelling. The Premises

was vacated subsequent to April 30, 1953.

8. [ J The premises are not a multiple dwelling. [ X ] The premises are a multiple

dwelling and pursuant to the Administrative Code Article 41 there is a currently effective

registration statement on file with the office of Code Enforcement in which the owner has

designated the managing agent named below, a natural person over 21 years of age to be in control

of and responsible for the maintenance and operation of the dwelling.

Multi. DwelL Regis. No.

111566 Registered Managing Agent's Name DARYL PARKER

Address : Residence I Business 887 St. Nicholas Avenue New York, NY 10032

Tel, (Opt.) To call for repair and service

9. Petitioner lacks information or notice of any address where the Respondents reside

or are employed or have a place of business or principal office in the State of New York, other than

the address of the Premises sought to be recovered.

10. At least 30 days before the expiration of said term the Respondent tenant was

served in the manner provided for by law with a notice in writing, a copy of which with proof of

service is annexed hereto and made a part of this petition, that the landlord elected to terminate

said tenancy and that unless the tenant removed from said Premises on the day on which said term

expired the landlord would commence summary proceedings under the statute to remove said

tenant therefrom.

WHEREFORE, Petitioner requests final judgment awarding possession of the Premises to

the Petitioner landlord; the issuance of a warrant to remove Respondent from possession of the

Premises; a judgment for rent in arrears against Respondent tenant for $1,667. 7 5; a judgment for

the fair value of use and occupancy of the Premises after February 28, 2013, a judgment of at least

$1,000.00 for attorneys' fee of Petitioner; and the costs a sements of this proceeding

Dated: March 25, 2013

U1>.1,,.__,o & ASSOCIATES, PLLC. orneys for Petitioner

ALPHA PHI ALPHA - ALPHA GAMMA LAMDA CHAPTER INC.,

STATE OF NEW YORK, COUNTY OF QUEENS, ss The undersigned attorney for Petitioner, hereby affirms under penalty of perjury and pursuant to

CPLR 2106 that the deponent has read the petition, and that the contents of the petition are true

to the deponent's own knowledge, except as to those matters which are alleged upon information

and belief, and as to such matters that deponent believes them to be true; that the deponent is the

attorney for the aforesaid Petitioner; and that the ground of my belief as to all matters not stated

upon my knowledge are conversations with the agents of, and brooks and records of, the

Petitioner. This affirmation is made pursuant to RPAPL 741.

Dated: March 25, 2013

O·UL"'-' A s for Petitioner

ALPHA PHI ALPHA - ALPHA GAMMA LAMDA CHAPTER INC.,

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK

ALPHA GAMMA LAMBDA CHAPTER

-against-

BRIAN KING Address:

Petitioner-Landlord.

887 St. Nicholas A venue, 3rd Floor New York, New York 10032,

Respondent-Tenant.

'

HOLDOVER PETITION

Petitioner' Residence: 887 St. Nicholas Avenue New York, New York 10032

THE HOLDOVER PETITION OF ALPHA GAMMA LAMBDA CHAPTER landlord of the premises alleges, upon information and belief that:

1. Petitioner is the landlord oftbe premises and the petitioner in this action.

2. Respondent BRIAN KING is the person in possession of said premises who entered in possession thereof pursuant to an oral agreement made on or about January 1, 2013 between respondent and landlord for a month to month tenancy starting January 1, 2013 ending January 31, 2013.

3. Respondent BRIAN KING is the tenant of the petitioner.

4. The premises for which removal is sought is for Dwellip.g purposes and is described as follows: ALL ROOMS - IBIRD FLOOR in building known as 887 St. Nicholas Avenue, Ne:w York, New York 10032, situated within the territorial jurisdiction of the Civil Court of The City of New York County of New York.

5. The term for wirich said premises was occupied was on a month to month basis and expired on January 31, 2013 and the respondent(s) continues in possession of the premises without permission of the petitioner and/or landlord, after expiration of said term.

WHEREFORE, Petitioner requests a final judgment against respondent for possession, awarding possession of the premises to petitioner landlord, and directing the issuance of a warrant to remove respondent from possession of the premises together with costs and disbursements of this proceeding, as well as judgment for rent arrears and/or use and occupancy against respondent and use and occupancy to be set.

Dated: October 22, 2013

Petitioner: ALPHA G.Ai.\1MA LAMBDA CHAPTER

LANDLORD

STATE OF NEW YORK, COUNTY OF NEW YORK. The undersigned affirms under penalty of perjury that he is the attorney for petitioner, that he has read the foregoing petition and knows the contents thereof; that the same are true to his own knowledge except as to matters stated upon his knowledge are statements and/or records provided by petitioners and contained in the file in the attorney's office. This verification is made

. pursuant to the provision ofRPAPL 741.

Dat.ld: October 22, 2013

Georg '. Pe , Esq. Law 0 ce of George T. Peters, PLLC 402 West 145th Street, 2nd Floor New York, New York 10031 347.751.0157

TO: BRIAN KING, JOHN DOE, JANE DOE 887 St. Nicholas Avenue, 3rd floor New York, New York 10032

RE: Premises: All Rooms, Third Floor in the building known as 887 St. Nicholas Avenue, New York, New York.

PLEASE TAKE NOTICE, that ALPHA GAMMA LAMBDA CHAPTER

["LANDLORD"], the owners of the subject premises, elect to terminate your tenancy

due to your failure to vacate the premises on May 31., 2013 as promised via oral

agreement on or about January 1, 2013.

PLEASE TAKE FURTHER NOTICE, that your tenancy is hereby o-anceled and

terminated as of April 14, 2014, that being at least thirty (30) days from this Notice

and in the event you fail to vacate and surrender physical and legal possession, the

Landlord will commence an action or proceeding in a court of competent

jurisdiction to recover possession of the Premises, including, but not limited to,

reimbursement for attorneys' foes, costs and disbursements incurred in connection I

with the action or proceeding.

PLEASE TAKE FURTHER NOTICE, that this Notice is being served upon you

without prejudice to any and all other violations known or unknown relating to the

Premises.

THIS IS INTENDED AS A THIRTY [30] DAY LEGAL NOTICE FOR THE

PURPOSE OF TERMINATING YOUR TENANCY. THIS NOTICE TO TERMiNATE IS IN

ACCORDANCE WITH NEW YORK REAL PROPERTY LAW§ 232-A.

PLEASE TAKE FURTHEH. NOTICE, that . .my response to this Notice shall be

sent and directed to the below-named attorneys for the Landlord.

Dated: New York, New York January 27, 2014

ALPHA GAMMA. LAMBDA CHAPTER tandlord

Geor(i\e T. -~ters, Esq. Law Q.ffic~ Of George T, Peters, PLLC 402 W 145'11 Street, 2nc1 Floor New York, New York 10031 347-751-0157

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART F

--------~----------~-----~-----------~~---------------------:X ALPHA GAMMA LAMBDA CHAPTER,

Petitioner - Landlord,

-against-

BRIAN KING,

Respondent - Tenant,

JOHN DOE and JANE DOE,

Respondents - Undertenants.

---------------------~------------------------------------------:X

L&T Index No.

NOTICE OF PETITION (NONPAYMENT)

Petitioner's Residence 887 St. Nicholas Avenue New York, NY 10032

The Petition of ALPHA GAMMA LAMBDA CHAPTER ("Petitioner"), landlord of the premises alleges, upon information and belief that:

1. Petitioner ALPHA GAMMA LAMBDA CHAPTER is the owner and landlord of the premises described below (the "Premises").

2. Petitioner is a New York Not-For-Profit corporation authorized to do business in the State of New York.

3. Respondent BRIAN KING ("Respondent") is a tenant in the Premises pursuant to an oral rental agreement made on or about January 1, 2013 between Respondent, as tenant, and Petitioner, as landlord for a month-to­month tenancy starting on January 13, 2014 and ending on April 14, 2014.

4. Respondents-undertenants, "JOHN DOE" and "JANE DOE" are the undertenants of Respondent, whose actual identities are unknown to Petitioner.

5. Respondent and respondents-undertenants entered into possession and

continue in possession of the premises.

6. The Premises, from which removal is sought, are described as All Rooms­Third Floor in the building known as The Alpha House, 887 St. Nicholas Avenue, New York, New York 10031, situated in the borough of Manhattan and within the territorial jurisdiction of the Civil Court of the City of New York, County of New York.

7. Pursuant to the parties' lease agreement, Respondent owes Petitioner Forth

Six Thousand Five Hundred Fifteen Dollars ($46,515.00) for rent and

additional rent Attached herein as Exhibit A is a breakdown of this total.

8. Such rent has been demanded orally from the Respondent since it became

due and every month thereafter.

9. Respondent-tenant has defaulted in the payment of such rent, pursuant to

the agreement under which said premises are held.

10. Respondents continue in possession of the Premises after said default and

the foregoing demand Without Landlord's consent.

11. Respondents' term expired for the reasons set forth in the 30 day notice of

termination with proof of service upon the Respondents annexed hereto as

ExhibitB.

12. The Premises is not subject to the City Rent and Rehabilitation Law or the

Rent Stabilization Law of 1969, as amended. The Premises IS single room

occupancies (SROs).

13. The Premises IS not a multiple dwelling. The Premises is categorized as a

Class P building (place of assembly).

14. Respondent was allotted and agreed to the use of one room on the third floor

of the premises. However, Respondent took over the entire third floor in

contravention of his oral agreement with the Petitioner.

15. Respondent erected gates, chains and locks on the premises without

Petitioner's consent.

16. Petitioner lacks written information or notice of any address where the

Respondent resides, is employed, or has a place of business in New York,

other than the Premises sought to be recovered.

17. Pursuant to the parties' oral agreement, Petitioner is entitled to recover its

costs, disbursements, and attorney's fees.

18. Petitioner has and will. incur such costs and fees, in an amount to be

determined by the Court at a hearing or trial, but believed to equal or exceed

the sum of Forth Six Thousand Five Hundred Fifteen ($46,515.00).

WHEREFORE, Petitioner requests a final judgment for possession of the

Premises and forthwith issuance of a warrant to evict respondents, a money

judgment against Respondent for rent arrears through April 14, 2014, in the amount

of Forty Six Thousand Five Hundred and Fifteen Dollars ($46,515.00), together with

interest thereon from February, 2013, an award of use and occupancy of the

Premises from April 15, 2014, in an amount to be determined by the Court,

attorney's fees in an amount no less than Ten Thousand Dollars ($10,000.00), the

costs and disbursements of this proceeding and such other and further relief as this

Court deems just and proper under the circumstances.

Dated: New York, New York May15,2014

ALPHA GAMMA LAMBDA CHAPTER

Petitioner

""' George T Pe s, Esq. Law Office of George T. Peters, PLLC

Attorney for Petitioner 402 West 145th Street, 2nd Floor

New York, New York 10031

347.751.0157

CIVIL COURT OF THE CITY OF NEW YORK Housing Part

COUNTY OF NEW YORK

ALPHA GAMMA LAMBDA, ) )

Petitioner, ) Index No. 61012/13

)

-against- ) Affirmation in Support of Motion to

) Dismiss Pursuant to CPLR § 3211

BRIAN KING, )

)

Respondent. )

~~~~~~~~~~~~~~~)

Attorney Affirmation of Truth

Michael R. Nemschick, an attorney admitted to practice before the courts of this state,

hereby affirms under the penalties of perjury that the following statements are true, except those

made on information and belief, which he believes to be true.

The Petition Must be Dismissed Because it Fails to Allege

a Meritorious Exemption to the Rent Stabilization Law.

"RP APL§ 741 requires that a proceeding state the facts upon which it is based. This generally

includes a requirements that the petition assert whether the Subject Premises is governed by rent

regulation, or the basis for any alleged exemption." 506 W. 150TH St •• LLC vPrier, 2012 NY Slip

Op 51 !43(U) (Civ. Ct. New York Co. 2012) (dismissing petition for failure to state a cause of

action when the petitioner there failed to allege a meritorious exemption to the Rent Stabilization

Law). A petition that fails to set forth a colorable exemption to the Rent Stabilization Code must

be dismissed for failure to state a cause of action. See 546 W. 156 St. HDFC v. Smalls, 8 Misc 3d

135{A) (App. Div. 1st Dep't 2005) (granting a motion to dismiss where petitioner there failed to

allege a proper basis for exemption to the Rent Stabilization Law); Smiley v. Williams, 2009 NY

Slip Op. 29394 (Civ. Ct. New York Co. 2009) (same).

The petition in this case states: "The Premises are not subject to rent control or the Rent Sta-

bilization Law ... by reason of the fact that the building in which the Premises are located is a

multiple dwelling." See Pet. at ii 7. The next paragraph of the petition states: 'The Premises are a

multiple-dwelling and ..• there is a currently effective registration statement on file with the Office

of Code Enforcement[.]" See Pet. at ii 8. However, the fact of the premises being located in a

multiple dwelling does not constitute an. exemption to the Rent Stabilization Law. See Acevedo v.

The Piano Building LLC, 70 AD3d 124 (App. Div. 1st Dep't 2009) (affirming a trial court's dis-

missal of a holdover proceeding after determining that the building was a multiple dwelling and

not subject to an exemption under the Rent Stabilization Law). Because paragraphs 7 and 8 of the

petition state that the premises are located in a multiple dwelling, and because neither paragraph

states a basis for exemption to the Rent Stabilization Law, the petition fails to state a cause of

action pursuant to RP APL § 741. Accordingly, the petition must be dismissed as defective. Id.;

also see MSG Pomp Corp. v. Doe, 185 A.D.2d 798 (App. Div. 1" Dep't 1992) (dismissing the

petition when the petitioner made "misrepresentations of the ... rent regulatory status of the

premises").

The Petition Must be Dismissed Because the 30-Day Notice of Termination

Was Not Served in Compliance With the Provisions of the RP APL.

Proper service of a predicate notice is a prerequisite to instituting summary proceedings and

the failure to effectuate proper service of a predicate notice requires dismissal of the proceedings.

Kiamie-Princess Marion Realty Corn. v. Lipton, 20 Misc 3d 423 (Civ. Ct. New York 2008)

(dismissing holdover proceedings after finding that the 30-day termination notice was not served

in compliance with statutory provisions); House of Bowery Corp. v. Ensley. 182 Misc 2d 471

(Civ. Ct. New York 1999) (same).

Petitioner submitted an affidavit of service of the termination notice, executed by affiant John

2

Burnett. Mr. Burnett states in the affidavit that he attempted to serve the termination notice on

January 24 and January 25, 2013. However, a review of the notice itself reveals that the two

signatories did not sign it until on or after January 26, 2013. To be sure, it would be a matter of

utter impossibility for Mr. Burnett to attempt personal delivery of the notice before the notice was

provided to him. The falsity of this averment is self-evident, indicating Mr. Burnett's unwitting

attempt to deceive the Court. 1 Being that th.e affidavit states an impossibility, it is proof positive

that the 30-day termination notice was not served in accordance with applicable statutory provi-

sions. The petition must he dismissed under the foregoing circumstances.

Astonishingly, Mr. Burnett's deceit does not end with his incredible time.bending averment.

To wit, Mr. Burnett also avers in the affidavit that he is "not a party to this action[.]" To the

contrary, Mr. Burnett is the party. In fact, on February 21, 2013, Mr. Burnett personally appeared

with his attorney (Jose Polanco, Esq., also Mr. Burnett's counsel in the current action) in a pending

HP action (King v. Alpha Gamma Larnbd!b Index No. 195/2013) in this Court, Part B, Room 1166,

at 9:30 am, and held himself out before Judge Gonzalez as the party. The fact ofMr. Burnett being

a party is pivotal because New York law forbids the party itself from personally delivering process

upon an opponent. Wein v. Thomas, 51NY2d862 (NY 1980) (affirming dismissal of an action

because petitioner served the initiating papers in violation of CPLR § 2103, which authorizes a

person who is "not a party" to serve process); Kedzielawa v. Smolinski, 70 N.Y .2d 604 (NY 1987)

(same); also see Zamar v. Fair, 153 Misc. 2d 913 (Civ. Ct. Bronx Co. 1991) (dismissing a hold-

over proceeding after determining that the 3 0-day termination notice was served by the petitioner

in violation of CPLR § 2103). Because Mr. Burnett is a party to this action, his affidavit, wherein

he purports to have effectuated personal service on the respondent, is invalid as a matter oflaw.

1 Mr. Burnett also seems to have forgotten that he traveled to Washington D.C. on the evening of January 23 and was

not actually in New York City on the morning of January 24.

3

Accordingly, the petition must be dismissed due to defective service of process. Berkeley Asso-

ciates Company v. Di Nolfi, 122 AD2d 703 (App. Div. l" Dep't 1986) (dismissing summary

proceedings where petitioner failed to effectuate nail and mail service in accordance with statutory

provisions).

These Proceedings Must be Dismissed Because the Petition and Notice of

Petition Were Not Served in Compliance With The Provisions of the RPAPL.

When the petition and notice of petition in summary proceedings are not served in com-

pliance with the RP APL, the petition must be dismissed. Id. RP APL§ 735 authorizes a process

server to effectuate service by "affixing a copy of the notice and petition upon a conspicuous part"

of the premises.

The petitioner has submitted the affidavit of Byran Mcelderry, who avers that he affixed a

copy of the petition and notice of petition to the door of the premises on April 4, 2013, at 1:28pm.

Mr. Mcelderry avers further that he made one previous attempt two days earlier on April 2 at

IO: l Opm. Mr. Mcelderry's single attempt fails to meet the "due diligence" or the less rigorous

"reasonable application" standards of conduct for a process server. American States Ins. Co. v.

Casado, 2011 NY Slip Op. 31322(U) (Sup. Ct. New York Co. 2011) (holding that two prior at-

tempts were insufficient to justify nail and mail when process server failed to make inquiries be-

fore resorting to it); Gintzler v. Schwarz, 126 Misc. 2d 491 (Civ. Ct. New York Co. 1984) ("The

courts do not like to count service attempts, but a single visit to the premises, when no one is at

home, will probably not suffice."). Under either standard, Mr. Mcelderry's averment that his only

effort was one prior attempt before affixing service to a dwelling requires dismissal of the petition.

Even if his alleged efforts were deemed sufficient, Mr. Mcelderry does not set forth in his

affidavit the means by which he allegedly gained access to the third floor. It's unlikely that Mr.

Mcelderry walked straight through the front door of a three-story brownstone, ascended two

4

' ' '

flights of stairs, and started knocking on the respondent's door at l O:OOpm. Ifhe did obtain access

as averred, he surely spoke to someone in the building who can vouch for him being there. Un-

fortunately, as averred in his May 7, 2013, affidavit, the respondent found no service attached to

his door on or after April 4. As such, there is a dispute as to whether Mr. Mcelderry affixed the

papers as averred.

These Proceedings Must be Dismissed Because They Are Frivolous

and Involve Fraud, Dishonesty, and Knowing Misrepresentations.

Viewing the petition in its entirety, along with all the documents attached to it, there are

several material misrepresentations of fact; including blatantly false statements regarding (1) the

alleged regulatory status of the premises and the basis of any alleged exemption; (2) a party to the

action who has also served process in the action; (3) the date on which Mr. Burnett allegedly at-

tempted to serve a 30-day notice at the third floor premises; and/or ( 4) the date on which the

30-day notice was allegedly signed by the two signatories. The foregoing material misrepresen-

tations constitute independent grounds for dismissing this action. See Hegeman Asset LLC v.

Smith, 5 Misc. 3d 8 (App. Div. 2d Dep 't 2004) ("[A] petition containing material misstatements

should be dismissed as a matter of equity.") (citing Hughes v. Lenox Hill Hosp., 226 AD2d 4

(App, Div. 1" Dep 't 1996)); i!l22 see Kentpark Realty Com. v. Lasertone Corp., 3 Misc 3d 22 (2d

App. Term 2004) (remanding for the purpose of dismissal, sanctions, and attorney disciplinary

referral after petitioners had made fraudulent misrepresentations to the court).

The Respondent is Entitled to an Award of Attorneys' Fees Because This

Litigation is Frivolous And Brought to Harass and Injure the Respondent.

22 NYCRR 130-1. I permits this Court, in the exercise of its discretion, to award costs in

reimbursement of actual expenses reasonably incurred, as well as attorneys' fees, resulting from

frivolous conduct - that is, conduct completely without merit in law or fact and which cannot be

5

.. '

supported by a reasonable argument for an extension, modification, or reversal of existing law.

Pahl v. Kassis, 182 AD2d 22 (App. Div. I st Dep't 1992) (reversing a trial court's denial of finan­

cial sanctions and awarding $3,341 to prevailing party after determining that the losing party had

engaged in frivolous conduct). Similarly, this Court is authorized to award costs and attorneys fess

resulting from conduct in litigation that was undertaken "primarily to harass or maliciously injure"

_someone. Jones v. Camar Realty Corp., 167 AD2d 285_ (App. Div. 1st Dep't 1990) (imposing

$2,000 sanction upon an attorney that filed frivolous papers for the purpose of harassing and in­

juring the opposing party).

As set forth in the respondent's affidavit, the instant suit arose only after the respondent

obtained an order to show cause, dated January 24, 2013, ordering the petitioner to make repairs at

the premises. That HP action is still pending before Judge Gonzalez and the repairs have yet to be

made. Importantly, the dates in which Mr. Burnett claims to have attempted and achieved service

of the 30-day notice correspond to the dates in which the respondent asserted his tenant rights.

This indicates Mr. Burnett's effort to avoid his obligations to make the repairs by falsely asserting

that the lease had ended on its own terms on the morning of January 24, prior to the respondent's

afternoon application for an order to show cause. It might have been a clever, if not a desperate,

ploy if it were not for the fact that Mr. Burnett's affidavit is demonstrably false and otherwise

invalid by virtue of him being a party to this action. To be sure, because Mr. Burnett's credibility

and ultimate liability in the HP action could tum on his ability to discredit Mr. King - by insinu­

ating that he ceased to be a bona fide tenant before he filed the HP action - it was perhaps pre­

dictable that Mr. Burnett would insert dates in an affidavit that would suggest that Mr. King filed

the HP action to avoid eviction. While Mr. Burnett's motives are understandable in light of the

liability he faced in the HP action, his fraudulent approach renders this litigation frivolous.

6

. . '

In light of the various misrepresentations that have been made in this vexatious, and what

turns out to be frivolous, litigation, the Court should schedule a hearing to determine whether an

award of costs and attorneys' fees is order. East Harlem Pilot Block v. Serrano, 153 Misc. 2d 776

(Civ. Ct. New York Co. 1992) (ordering a hearing to determine whether counsel engaged in friv-

olous litigation practices).

Conclusion

Pursuant to the authorities, arguments, and analysis set forth above, respondent respect-

fully requests that the Court enter an order dismissing this holdover proceeding pursuant to CPLR

§ 3211, entering a judgment in favor of respondent, awarding the respondent costs in addition to

reasonable attorneys' fees in the amount of$4,200, and providing the respondent any additional

relief that the Court deems appropriate.

Dated: May 7, 2013

7

Attorney(s) for Respondent

Michael R. Nemschick 30 Niewood Drive Ridge, NY 11961 (631) 413-2440 (phone) (631) 419-7435 (facsimile)

From: Btlan Klng- Fait: (718) 313-0050 To: Fax: +i {212) 374-805$ Page 1 of 7 07li712014 7:f1

Facsimile Cover Sheet To:

Company: Phone:

Fax: +1 (212) 374-8053

From: Brian King

Company: KFIRM LLP

Phone: +1 (202) 251-2121

Fax: (718) 313-0050

Date: 07/17/2014

Pages including this cover page: 7

Comments: To: Honorable Chief Admin Judge Fisher & Honorable Judge Spears re: Matters of public interest Dear Judges Fisher and Spears: Please find the attached letter and attachment, which I have provided to Your Honors as a courtesy. Thank you. Brian King, Esq.

Send and receive faxes with RlngCentral, www.rlngcentral.com

From: Brian King Fax; (718) 313-0050

Brian King, Esq. KFIRM LLP 40 Wall Street, zgth Floor New York, NY 10005

NYC Criminal Court Richmond County 67 Targee Street Staten Island, NY 10304 Via First-Class Mail and Facsimile (718) 390-8405

To:

Re People v. Paige-2013Rl009336-AP2DV

Your Honor:

Fax: +1 (212) 374-8053 Page 2 of 7 07117120t4 7;11

Phone: 202-251-2121 Fax: 718-313-0050

July 16, 2014

I represent the defendant in the subject named matter. I am writing because of peculiar circumstances regarding the appearance scheduled for July 17, 2014 at 9:30am in the instant matter. Please bear with me as I outline those circumstances below.

I appeared in a NYC Civil Court case this past Monday, July 14, 2014. It was the first appearance in a landlord/tenant case "'11ere I and two o1her individuals were named as respondents. The matter was presided over by Judge Brenda Spears. However, for unclear reasons, Judge Spears insisted, over the objections of both opposing sides, that the parties return at 9:30am on July 17, 2014. When I tried to explain to Judge Spears that I had conflicting engagements under 22 NYCRR 125.l, she insisted that I return to file an affirmation stating the same. Unfortunately, due to extensive travel and appointments over the last conple of days, the only time and day available for filing an affumation in that case is July 17 at 9:30am, the same time and day as this case is scheduled. As such, I respectfully request Your Honor's leave to appear at l 1:30am in the subject named case. A copy of the filing is attached for your reference.

One can only speculate as to Judge Spears' reason for setting the unreasonably short adjourned date. She perhaps fails to realize that her actions undermine efficient administration in her courtroom as well as in other courts. Indeed, Judge Spears' inflexibility diminished the efficiency of her own calendar as well as Your Honor's calendar. I hope that this letter will foster a dialogue within and between the numerous NYC courthouses regarding the efficiencies judges should pursue - and the courtesies they should afford litigants, attorneys, and other judges - in setting calendar dates. For that reason, and for other reasons in the public interest, I am providing a copy of this letter to Judge Spears and Judge Fern A Fisher, Chief Administrative Judge for New York City Courts. I will also follow up with Judges Fisher and Spears directly. lfthe problem persists, I will institute additional remedial measures in the public interest.

cc: Judge Fern A Fisher; Judge Brenda Spears

Respectfully,

ts/Byt;a,yv K~ Brian King, Esq.

From: Brian King Fi!X: (718) 313-0050

Brian King, Esq. KFIRM lLP 40 Wall Street, 28'0 Floor New York, NY 10005

George Peters, Esq. Law Offices of George T. Peters 402 West l.45'" Street New York. NY 1003 l Via First-Class Mail

To: Fax; +1 (212) 374-8053 Page 3 of 7 0711712014 7:11

Phone: 202·251·2121 Fax: 718·313-0050

July 15. 20!4

Re Alpha Gamma Lombda v. BriarJ Ki11g. New York Civil Court ··-L& Tl 4N065163114

Dear Mr. Peters;

The petition you filed iu the su~ject named matter is unverified. lam therefore treating the petition as a nullity pursuant to CPLR § 3()22.

Further, your sworn. verification in a previous matter, namely your affirmation dated October 22, 2013, in Alpha Gamma Lambda v. Brian King (84941112013), contradicts the allegations set fo1th i11 th~ lllstant peiition, which also bears your signature. The contradicting statements implicate your professimr4J conduct under Title 22. NYCRR, Part 1200-- emitled and commonly referred to a.<1 the Rules of Professioll<ll Conduct.

Because you are rumored lo be .in expert on matters of attorney professional conduct, I will nor need: to explain to you why and how the contradicting avem1ents require you to withdraw your representation oftlie petitioner in the instant. case. Indeed, your sworn statements in the previous case make you a material witoess in support of defenses and claims adverse to your client in the instant case.

l will afford you the opportunity to .... ~thdraw on your own. However, if you do not withdraw from the matter by July 21, 2014, l will be obliged to submit a motion on notice seeking your disqualilica1ion. As you know. and as I am sure your client would appreciate, once you are disqualified you will be required under me Rules of Professional Conduct to return all eamed and unearned tees in this matter to your client. I am sure this <.:<msequence comes to you a~ no surprise, Esquire, although l cannot imagine why you proceeded in a way that dictates tliis result.

Please fuel free to contact me if you need or desire additional information. but please be advised that f cannot and will not provide you legal e-0nsulta1lon regarding the foregoing matters.

Respectfol!y.

tstBrla-Yv K~ Brian King, Esq.

From: Brian King Fax: (718) 313-0050 To:

CITY COURT OFTHECITY OF NEW YORK COUNTY OF NEW YORK - Part H

ALPHA GAMMA LAMBDA,

Petitioner,

·against·

BRIAN KING, er al..

Respondent(s}.

Fax: +1 {21:2) 374-0053 Page 4 of 7 0711712014 7:11

x

L&T lntkx Nt>. 14N065163

Affirmation of Engagement Pursuant to 22 NYCRR § 125.1

_____ x

Brian King. an attorney admitroo to practice before the courts of this state, hereby affirms

under the penalties of perjury thai the following statements are true, eKcept those made on

information and belief, which he believes to he true.

I. ! am one of the name.d respondent~ in lhe instant matt.er. Bee<iuse lhe Court denied my

July 14. 2014 request for an adjoumnie11t to permit the appearance of my attorney, Michael

Nem~ehick, ! am proceeding prose until my att\irney retum8 from out of town.

2. The parties appeared before the Court in Part H on July 14, 2014. Petilio1ier appeared

personally and via counsel. l appeared prose. No one appeared on betialf of !he two other

respondents named in the Petition.

3. At the July 14, 2014 appearance, the Court ordered that an answer be served and filed by

July 15, 2014, and that the. matter would proceed to trial on July 17, 2014. However. the Court

adjourned th.e matter with.out discovering that no answer could in fact be due on July 15, an<l that

no trial cnn proceed it1 this matter before the Court addresses sev<>ra! threshold questions of law

under the CPLR, the RP APL, and 22 NYCRR. Part 1200, Title 22: Rules J ,7 and 3.7 of the

Rules of Professional Conduct. Accordingly. as outlined below, an adjournment is required

pursuant to various law and rules, induding but not limited to 22 NYCRR § 125.l.

1 ' i '

From: Brian KJng Fax: (718) 313-0050 To: Fax: +1 {212) 374-0053 Page $ of 7 07/1712014 7;1i

4. Turning first to the conflicting engagemeots. although the instant matter is scheduled for

9:30am on July 17, 2014,. ! am obligated to appear the full day on behalf of my clients in other

matters in other New York courts, which gives rise to two c011fllcting engagements within the

meaningof22 NYCRR § 125.l.

5. The details of the conflicting engagements are as follows: (!)(a) Title:. PeopJe v. Kelty

(Case No. 20l4QN03947 ! ); {b) The general nature of the engagement is felony criminal

pmeeedings; (c} The court of venue is the Queens County Criminal Court; (d) The matter

pertains to grand jury action, thus Assistant District Attorney Brian Hughes is the official in

charge of the scheduled proceedings; (e) The engagement is scheduled to cormnence on July 17,

2014 at 2: 15pm. and will likely cont!u<le between };45pm and S:OOpm on the same <fay; and (2)

(a) Title: Peop:}e v. Paige (Case No. 20l3Rf009336); (b} The general nature of the engagement

is criminal proceeding~; (c) The Court of venue is the Richmond County Criminal Court; {d) The

relevant part is AP2DV, but the assig!led judg.e is unknown: ( e) The e.ngHgenient is scheduled to

commence ou July 17, 2014 at 9:30am. and will likely conclude between !0:30am and l2:30pm.

6. The conflicting engagements ootlined above are both entitled to a statutory preference.

Specifically, the Kclll'.1 matte.r is enti.tled to a preference pursuant ro 22 NYCRR § I 25. l{c)(3)

(conferring statutory priority in matters pertaining to felonies); and the fJ!ig!:. matter is entitled to

a preference pursuant to 22 NYCRR § 125.l(c)(4) (conferring stantrory priority in matters

pert&inllig to misdemeanors). ln light of the foregoing dreumsiances, the inlltant matter must be

adjoume<l to resolve the conflicting engagements.

7. Turning next to threshold mattern of law that the Couit must address before the case can

procee<l to trial, as the attached letter demonstrates. the Petition is unverified and I have, pursuant

1 The Court ~outd be advised lh:u this n1attcr bi of substantial public intcresl and \Voul<l ntherivise constitute 11

conllkting engilgemont pt1,.,,nan11n 22 NYCRR t25.l (<1)(2)

2

From: Brian King Fax: (718) 313-0050 To: Fax: +1 (212) 374.9053 Page 6 of 7 07117a<J14 7:11

to CPLR § 3022, given the Petitionertimely notice of the defect. _s_~!\ attached 7- 15-14 Letterto

George Peters. Tbe resuh is thnt no answer is actually due in the case, as 1 am entitled to treat

the unverified Petition as a nullity under the CPLR,

8. Further, as autlined in the letter, the Petitioner's attorney cannot represent the Petitioner

furthe-r in these proceedings because a conl1ict of interest has been revealed. To summarize. the

attorney alleged facts under oath in previous proceedings that conflict with the allegations in tllil

instant proceedings.. Because that attorney has already sworn to material facts that contradict the

allegations set forth in the lust11nt iwoc:ee<lings, he is H malcriul witness to the claims and t.lefenses

I and the. other respondents may raise herein. Importantly, altorney Ernest Dubois - who

appeared on July 14, 2014 - by virtue of stating tilat he was "of counsel" to Petitioner's attorney,

and by virtue of stating facts on record consistent with the aUegations in the Petition. bas an

irresolvable conflict, requiring his disqualification, also.

9. Other threshold matters and questions of law exist requiring an adjournment, but because

Sltffieien~ grounds for illl adjournment are set forth above, further explications on this

consequence would be an exercise of supererogalion, and thus are omitted in the interest~ of

judicial economy.

WHEREFORE, pursuant w the foregoing affirmatioo, the undersigned respectfully

requests that the appearance be adjourned to a fu1ure date as deemed apprOl{tiate by the Court \

• i

. , __ .. _ __.._ ___ --··~--~

._ ~rian King, Esq. . ··· -kFlRMLLP ' 40 Wall St., 2s1

• Floor New York, NY 10005

2{)2-251-212! (phone) 718-113-0050 (facsimile)

From: Brian King Fax: (718) 313-0050 To:

CITY COURT OF THE CITY OF Nb-W YORK

COUNTY OF NEW YORK - Part H

Fax: +1 (:212) $74-8053 Page 7 of 7 07/17/2014 7:11

x -----ALPHA GAMMA LAMBDA.

L&T Index No.14N065163 Petitioner,

- against- Affirmation of Service by Postal Mail

BRIAN KING, et al.,

Respm1dent(s).

--------·---__ x

Brian King. an attorney admitted to practkc before the courts of this stale. hereby at1inns

under the penalties of perjury that the following statements are true:

On .July l5, 2014. the undersigned served the Affirmation of Engagement Pursuaut to

22 NYCRR 125.1, by causing a copy of the same to be placed in m1 envelope with postage

affo(ed and further causing, that envelope to be placed in an official depository under the

exclusive care and custody of the United S1a1e.~ Post Office DC)Xlrtment within the State of New

York. addressed to rhe following recipicnt(s):

Oeoige Peters, Esq. Law Offices of Ge<Jrge T. Peters 402 W<:st 145111 Strec1. New York, NY 10031

)

........ l ~ _., _,L.., •

_;-.:::... ;..:·).¥·~· .•. , :· ·: / ,,.C.:.~;L-... --. _ ___.__

Btian Kmg, Bs:q. · ~ ·· ·

KFIRMLLP 40 Wall St., 28'" Floor New Ymic NY 10005 202-251-2121 (phone) 71 &-313-0050 (facsimile)

21!2/ZO!S Push 10 Provicfe Lawyers in New York City Housing Court Gains Momentum - NYTimes.com

glJ.t~t\trilf.orklftuts http://nyti.ms/luQhwSC

N.Y. / REGION

Push to Provide Lawyers in New York City Housing Court Gains Momentum By MIREYA NAVARRO DEC.16, 2014

At the information table at Housing Court in the Bronx, tenant after tenant approached, often anxious and often in a familiar predicament - they owed their landlords rent and needed more time to pay it. Some had received eviction papers and did not know what to do.

Ana Cruz, a mother of three who said she owed $3,600 on her one­bedroom apartment because her public benefits had been cut, knew a little more.

"I feel I need a lawyer," she said. Most low-income tenants in New York face their landlords' lawyers

without lawyers of their own. Critics have long complained that without counsel, tenants are all but set up to lose, and often do. With the city stepping up efforts to help tenants remain in rent-regulated apartments, as part of Mayor Bill de Blasio's affordable housing strategy, the lack of counsel in Housing Court is drawing increased attention from City Hall and the court system.

The mayor has doubled spending for legal aid to fight evictions to more than $13 million a year; a bill pending in the City Council would require the city to spend more than $100 million. The legislation is part of a national campaign by elected officials, legal scholars and tenant advocates to establish a right to counsel in civil actions that impact basic needs like housing. The Sixth Amendment guarantees a right to counsel in criminal cases, but the Constitution does not provide a similar right in civil cases.

http :flwww .nytimes.com/2014112117 /nyregion/push-to-providc-lawyers-ln-new-york-city-housing--cotut-gai ns-momentum .html !15

2/12/2015 Push to Provide Lnwyers in New York City Housing Court Gains Momentum ~ NYTimcs.com

"Everyone facing a life-altering judgment shouldn't have to face that without an attorney," Mark D. Levine, the Democratic councilman who sponsored the bill, said. "At this point, it's about the money. I'm arguing that the city has so much at stake here that this is a prudent investment."

Since 2005, the number of evictions in the city has risen almost every year, reaching 28,849 in 2013, according to Housing Court Answers, a research and advocacy group that runs the information tables at Housing Court Tenant advocates argue that as many as half of those evictions could have been averted with legal representation.

Lawyers, they said, could help tenants navigate a maze of housing laws and assert their rights under rent regulation and housing subsidy programs that set limits on how and when an eviction can happen.

Even when tenants are behind on rent, which accounts for most eviction cases, a laWyer could help them remain in their home.

"They don't know that if the landlord hasn't made repairs, the law says you're entitled to a rent abatement," Sadia Rahman, a supervising lawyer with the Urban Justice Center in Manhattan, said.

Jonathan Lippman, chief judge of the New York State Court of Appeals, has been a leader in the movement for the right to counsel for the poor in civil cases.

"It's a foreign world to them," Judge Lippman said of Housing Court. "The tenant doesn't know what to say except, 'Judge, help me.' That's the typical situation. It puts the judge in a very difficult situation because he's neutral. It creates such havoc in the system because it's an uneven playing field."

Emily Jane Goodman, a retiredjustice of the New York State Supreme Court, said Housing Court was her "worst" experience on the bench.

"Housing Court is the most unbalanced, unfair and unjust court in our system, and the biggest problem is lack oflegal representation," Ms. Goodman said.

"Tenants do not know their rights, are frightened, intimidated, enter agreements they do not understand and cannot possibly fulfill," she said. "Typically, they may consent to a judgment of eviction and agree to pay a sum

http:/fwww.nytimes.com/2014/1'1117/nyregionlpush-to-.provide-lawy~rs-in-new~york..city-housing-court-gains-momentumJitmI 215

Z/12120!5 Push to Provide Lawy"rs in New York City Housing Court Gains Momt~tum - NYTimes.com

of money they have no ability to raise."

The need was evident at the help desk in Housing Court in the Bronx,

where some tenants asked for assistance filling out paperwork they did not

understand, or asked where they were supposed to go.

David James, 60, a truck driver who said he owed his landlord $1,184 for

the one-bedroom apartment he has lived in since 1995, was standing in line to

get legal forms to respond to eviction papers.

"The landlord said he'd put a lock on my door," he said. "I find a lock on

my door, I'd be out on the street."

Mr. James, who said it was not the first time he had fallen behind on rent,

said other bills were to blame this time. He said a laWYer could explain his

situation to the landlord and the court.

"My lawyer could get in contact with my landlord and tell him this and

that," he said.

Sometimes all it takes to lose one's home is a missed deadline or court

appearance. "I didn't understand the process," said Bweela Steptoe, a 44-year­

old freelance fashion designer who was evicted from her three-bedroom

apartment in Brooklyn a few years ago.

Ms. Steptoe was living with two daughters, her sister and four cats when

she did not show up in court. She said she had not been aware of the court

date. "A lawyer would have told me what I needed to do," she said. "It was a

big emotional thing." Her landlord allowed her to return a month later, she

said, after she paid the $5,000 she owed.

The pending bill has wide support in the City Council, but how the city

would fund such a mandate has not been settled. This week, the Independent

Budget Office estimated that covering the cost of counsel in eviction cases for

people with incomes at or below 125 percent of the poverty line, the threshold

for many legal aid services, would cost the city $100 million to more than

$200 million. (Eviction cases typically cost about $2,000 to $3,000 each,

lawyers who work in Housing Court said.)

The expense would be significant but it would come with sizable savings,

the budget office noted, including $143 million a year in shelter costs shared

hUp;//www,nytimes.com/2014112/17/nyregion/push-to~provide-lawyers·ln..new.york..i::ity-housing-court~gains-momentum.html 315

211212015 Push to Provid, Lawyers in New York City Housing Court Gains- Momentum - NYTimes.com

by the city, state and federal governments.

About one-third of homeless families that entered shelters from 2002 to

2012 were evicted from private housing, and about half of them came from

rent-regulated apartments, the budget office reported this month.

A group of legal scholars challenged those estimates, saying that the

report underestimates the actual cost savings to the city. Andrew Scherer, the

policy director at New York Law School's Impact Center for Public Interest

Law, said the city would also save on health care, education, welfare benefits

and other costs it can incur.

The mayor's office has not taken a position on the legislation. Steven

Banks, commissioner of the Human Resources Administration, which has

been charged with coordinating the city's anti-eviction legal efforts, said in a

statement that those efforts are "one piece of a much broader strategy the

administration has undertaken to alleviate homelessness and preserve

affordable housing."

Tenant advocates say that providing counsel is essential to the mayor's

housing agenda, which relies in large part on preserving existing affordable

units.

Susanna Blankley, director of housing organizing for Community Action for Safe Apartments, a project of New Settlement Apartments in the Bronx,

said: "If we don't have tenant protections in place and right to counsel, we'll get rid of more affordable housing than will get built." A version of this article appears in print on December 17, 2014, on page A27 of the New York edition with the headline: Support Builds for a Push to Provide Tenants With Lawyers in Housing Court.

© 2015 The New York Times Company

http;//www.nytimes,.cQm/20!4/l'lJ17Jnyr(glon/push-towprovlde·lawyers-in-new-york-city-housing-court-gains-momentmn,html 415

CIVIL COURT OF THE CITY OF NEW YORK 111 CENTRE STREl';T

HON. DAVID J, KAPLAN SUPERVISING JUDGE, HOUSING COURT

NEW YORK COUNiY

Brian King, Esq. KFirmLLP 40 Wall Street, 2g•h Floor New York, New York 10005

Dear Mr. King:

NEW YORK, NY 10013

August 13, 2014

Re: Alpha Gamma Lamda v Brian King, New York County L&T Index No. 65163/2014

I am in receipt of your letter dated July 16, 2014 regarding the handling of your scheduling issue which was referred to me for response in my capacity as Supervising Judge of the New York County Housing Court. I understand from review of the Court file, as well as your subsequent appearance before me for trial, that the case was ultimately discontinued and no adverse action was taken against you in this proceeding. Please accept my apologies for any injustice that you perceived. While it is not possible to undo what happened, please be assured that I will continue to work with my peers and their staff to ensure that we are all fully cognizant of the conflicting pressures felt by the litigants and attorneys which we serve. Thank you for taking the time to bring your concerns to our attention.

Sincerely,

</ZPo;i...-----------David J. Kaplan Supervising Judge, New York County Housing Court

cc: Hon. Fern A: Fisl1er .

,.,..:? "' I ! Jt t• ' Al ! · ·. · Mn an10 .· .. · ,s.,. ada5006(~gn~a ... it:H:l:~i)', 9:35am

It's int!iresting how these things are interrupted my different people involved in the case.

John is under the impressinn that the Judge made a point of saying that there is no official agreement allowing King to stay in the house and we simply need to contact the man;hail's office and have him removed, In the meantime; he mentioned h.aving bros go to the house this week and remove the gate (He also said that the judge made mention of the gate being illegal).

rm very concerned with such different accounts. from bros on the same side of the courtroom. Can I sugges.t we push to have the actual lawyer speak to the cha·pter in some form?