It’s believed that 90% of tenants in landlord-tenant cases brought in the Housing Courts of the Civil Courts of New York are unrepresented.  The reasons are obvious – lawyers aren’t cheap. And I’d guess but I don’t know that most people brought into Housing Court aren’t in the best financial situation. Many of them may live in rent-controlled or rent-stabilized apartments that the landlords want to take back and rent out at market rate.

So I get into Housing Court and I decide to make things as difficult as possible for the landlord. I know that my adversary won’t be accustomed to opposition and that I’ll attempt to carry out a death by a thousand cuts.  One of the methods to do this is discovery.  In the Supreme Courts of New York State, there is ample opportunity for discovery.  This is why many cases take so long, among other reasons. Housing Court actions, also known as “summary proceedings,” are meant to go quickly.  The general procedures can be found in Article 4 of the CPLR.  As a result, the laws regarding discovery in these types of actions are very limiting in what a party can do.

Section 408 of the CPLR begins with “Leave of court shall be required for disclosure except for a notice under section 3123.” CPLR 3123 (“Admissions as to matters of fact, papers, documents and photographs” or Requests for Admissions) is one of the discovery devices you can use against your landlord.

On its face, a request for admission (sometimes called a “Notice to Admit”) seems simple enough.  Presumably you could write something like “The landlord brought this case against the tenant because the landlord wants to evict the tenant and replace him or her with a white person from the midwest who wears a flannel shirt and likes gastropubs.”

However, requests for admission can’t be used to obtain information about factual controversies at the heart of the case. In the made-up scenario in the previous paragraph, the tenant’s request for admission that the landlord seeks to evict the tenant in order to replace him or her with a higher paying occupant goes to the core of the case. The landlord has likely premised their case on something seemingly legitimate. Perhaps the tenant paid rent late a few times. Maybe the tenant is rude to other tenants. Maybe the tenant has a cat. All of these are reasons the landlord would present in its papers to the court.  No landlord would ever say, “Your honor, I want to evict the tenant because my client can receive three times the rent by subjecting his apartment to vacancy decontrol or destabilization.”

This device is used “to eliminate from contention factual matters which are easily provable and about which there can be no controversy” and “to expedite the trial by eliminating as issues that as to which there should be no dispute.” Wai Choi Cheung v. 48 Tenants’ Corp., 2015 N.Y. Slip Op 31857 (Sup. Ct. 2015).

So the problem is that the Request for Admission doesn’t let you take aim at the essence of the landlord’s case.  This is probably not the best analogy but consider chess, and you have the pawns surrounding the queen. The limitations on the notice to admit prevent you from putting your target right on the queen. You have to instead knock off the little pawns. What those little pawns are will depend on the specific facts of the case.

In the case of Courtney House LLC v. Goetz, I’m including a notice to admit upon the landlord. I couldn’t include a statement like “Admit that Bernie was seen with a squirrel or rat on May 8, 2013 in the lobby of the building.” This is because such a statement goes to the heart of the landlord’s case – that Bernie has “harbored” a squirrel or rat at one time or another, and the landlord seeks to evict him for this.

The notice to admit has to be tailored to the facts of the case. In this case, the landlord is claiming that Bernie’s alleged possession of squirrels, rats, or other animals constitutes a nuisance. They also are alleging that the building has a “no-pet/no-animal” policy though this isn’t the crux of their argument. It is my belief that while Courtney House may have a written policy of “no pets,” that is not consistent with the facts within the building. Many tenants there have dogs and cats. How do I prove this? What is its relevance?

First I’ll address the relevance. In their initial notice of termination, the landlord claimed that Bernie has “continually harbored wild animals…without the landlord’s prior written consent” and that “the wild animals are unsanitary, repulsive and your harboring them greatly interferes with the comfort and safety of the landlord, building employees, and the other residents of the building.” The initial notice also claims that one of the animals Bernie allegedly possessed had fleas.

The above paragraph is conclusory in nature. It doesn’t state how the animals are unsanitary. I know many people who are a lot less sanitary than many cats. It doesn’t state how the mere presence of the animals is repulsive. Was somebody grossed out by a pet hamster that Bernie may have had five years ago? It doesn’t state how possession of such animals interferes with anyone else in the building. For instance, does Bernie sic his hamster on other residents with malicious intent?

But this still has to relate back to the Request for Admissions. I asked in the notice if other tenants possess pets and whether the landlord has contracts with exterminators to maintain the common areas of the building and the apartments of other tenants when necessary.

What does any of this prove or assist in proving? My goal is to show that (i) there are tenants in the building who possess pets, (ii) there have probably been complaints made by some tenants against other tenants who possess pets, (iii) pets of other tenants have probably had an accident in the lobby or common areas of the building and (iv) there have been instances where the exterminator’s services were needed in parts of the building other than Bernie’s apartment.

If this seems like a circuitous way to prove the facts I am seeking, that’s because it is. I can’t directly seek discovery to attack the central part of landlord’s nuisance case. What I can do however is seek admissions that there are other tenants who have pets, those pets probably create more nuisance than any hamster Bernie allegedly ever had and that yes, like most buildings in big cities, there are likely issues which require an exterminator on a regular basis. Also, something like whether or not other tenants possess pets is a fact that can be determined by my office, but it would require me to sit outside the building all day and take pictures or video of the tenants with dogs coming in and out. So this information isn’t secret it would just be burdensome to have to obtain it. Therefore we can seek the admission of this fact.

All this doesn’t prove whether Bernie’s actions rise to the level of nuisance. It doesn’t have any bearing on that. What it would show is the conditions in the building with respect to pets, tenants and the exterminator and allow the allegations against Bernie to be viewed with those things in the background, in context. Which is to say, in context, his actions, if any, are minimal and basically the landlord is making a fuss about nothing. Because they want to rent the apartment to some guy with a beard who likes gastropubs.

2015.10.22 Requests for Admissions

Requests for Admission in Housing Court

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