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 petitioners 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 evidence, 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
respondents 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.

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, e.g.,
Jersey Street Associates, LLC. v. Quality Cleaning Corp., 2002 WL 484234 (Civ. Ct. New York
2002) (granting respondents motion to dismiss pursuant to CPLR 3211 when it submitted documents 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 misrepresentations to the court).
3. As outlined in the paragraphs below, the documents submitted with this motion, along with
various documents in the Courts files, flatly contradict and utterly refute the petitioners 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. Wil2

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 constitutes 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 petitioners averments to the contrary, absent a
specific applicable exemption, a dwelling with six or more units presumably falls within the purview 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 petitioners 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 petitioners attorney, Richard St. Paul, that the premises is
comprised of only three units is a complete fabrication that squarely contradicts the petitioners
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

are at least 6 units in the subject premises.). Owing to the petitioners failure to state a colorable
exemption to the rent stabilization laws, and notwithstanding Attorney St. Pauls knowing misrepresentation that there are no more than three units in the premises, the petition must be dismissed 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 misrepresentations 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 petitioners 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 pe4

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 respondents 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 petitioners
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 petitioners 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 originate 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 respondents
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

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 proceedings. 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. Importantly, 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 Yorks
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
6

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 Courts 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 petitioners 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 petitioners application to discontinue 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 petitioner 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, petitioners 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

the several defenses raised in this motion. Not only do the strictures of CPLR 3211 hold otherwise, 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 petitioners own sworn statement, which is attached to the petition itself. No trial procedure can reverse 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 (Burnetts affidavit of service) 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 liars paradox. And most
instructively, it handily illustrates what is meant by the phrase: pleading oneself out of court. As
such, and notwithstanding Mr. St. Pauls 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 Divisions order holding that a landlords notice of intention to terminate
occupancy for a tenants unauthorized conduct was fatally defective when extrinsic evidence
showed that the allegations stated in landlords 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 petitioners
conduct herein. That rule authorizes the Court to impose financial sanctions against a party/attorney who engages in frivolous conduct. The same rule authorizes the Court to order the

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 frivolity. 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 petitioners persistent attempts to evict respondents illegally from these rent-regulated premises 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

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 petitioners 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 consequences of their malfeasance by virtue of Judge Stollers 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 Engagement by Attorney Brian King, dated July 17, 2014). To the petitioners credit, nay shame, its

10

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 petitioners 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 representations 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 Courts
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 Courts jurisdiction 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

11

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 petitioners shenanigans implicate the professional standards that govern
the licensed attorneys who have represented it in the various proceedings. See Rules of Professional Conduct (22 NYCRR 1200.0) Rule 8.4(c) (prohibiting attorney conduct involving dishonesty, 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 receives 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

12

problem that Judge Stoller advised Mr. King (Respondent), Mr. Burnett (Petitioner), and Mr. St.
Paul (Petitioners 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 Courts 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 Courts 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 unbalanced, unfair and unjust court in our system, and the biggest problem is lack of legal representation.). 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 petitioners
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 petitioners attorney announced ready for trial at the appearance,
the petitioner was not present at the calendar call, thus no trial could in fact proceed.
13

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
tenants 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 proceedings that may ultimately cast them out of secure housing and into the throes of wretched homelessness. See Exhibit J , supra (Hon. Jonathan Lippman, chief judge of the New York State Court
of Appeals, stating: Its a foreign world to them. The tenant doesnt 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 its 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 Courts
jurisdiction on successive attempts, nearly succeeded on one or two occasions in unlawfully depriving 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.) (landlords 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 landlords 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 discovered 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 corporate 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).
14

cause this tactic increases petitioners 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 orders 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 petitioners favor), and who
has had its time wasted repeatedly for almost two years while trying to untangle this petitioners
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 dont have tenant protections in place and the right to counsel, well
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 indispensible 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-

15

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 researching 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 expended 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 petitioners 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 petitioners 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 Courts attention, I would be happy
to submit additional details about my experience and the efficient methods I employed to investigate this matter and bring it to the Courts attention. If the same is not satisfactory to the petitioner, 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, notwithstanding my advanced consent to provide additional information or participate in a hearing on

16

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 attorneys 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 petitioner 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)

17

https:/lhpdonline.hpdnyc.org/HPDonline/se!ect_application.aspx

.PD Building Info

2/12/2015
012615
HPD Buik:Hng, Registration & Violation

Services

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1:!00!:

The selected address: 887 ST NICHOLAS AVENUE, Manhattan 10032

HPD#

8277 Ac1ive

Rartge

Block

Lot

CD CensusTract

887-887

02068

0066

2350 l

Stories

A Units

Ownership
PVT

B Units
6

Registration#

Class

ll !566

Building Registration Summary Report

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Organization

Last Nm

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10030

WEST
130ST

2R NY

NY

10037

WEST
130 ST

2R NY

NY

10037

WEST
130 ST

ZR YORK

NY

10037

BlACKMON LARRY 200

Officer

06/26/2014
09/01/2015

BURNETT

Corporation

06/26/2014
09/01/2015

ALPHA GAMMA
LAMBDA CHAPTER

Managing
Agent

06/26/2014
09/01/2015

ALPHA GAMMA
LAMBDA

JOHN

State Zip
NY

06/26/2014
09/01/2015

BURNETT

Apt City

WEST
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Head Officer

JOHN

Street Nm

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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,

Index No. 84948/2013

- against DECISION/ORDER
BRIAN KING,
Respondents/Tenants.

------------------------------------------------------------ x

Hon. Jack Stoller

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

Present:

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

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.

.,
'

'

'

been pied
Accordingly, the Court does not find that a meritorious cause of action has
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
HON. JACK STOLLER
J.H.C.

and the

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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.,
Petitioner,

PETITION
Hold Over - Dwelling

-against-

Petitioner's Residence

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

887 St. Nicholas Avenue

New York, NY 10032
Respondent,

"JOHN DOE" and "JANE DOE"

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

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.

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

6.
permission and after said default.
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.

7.

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

Petitioner lacks information or notice of any address where the Respondents reside
9.
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.
At least 30 days before the expiration of said term the Respondent tenant was
10.
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. 75; a judgment for
the fair value of use and occupancy of the Premises after February 28, 2013, a judgment of at least
sements of this proceeding
$1,000.00 for attorneys' fee of Petitioner; and the costs a
Dated: March 25, 2013

U1>.1,,.__,o &

ASSOCIATES, PLLC.
orneys for Petitioner
ALPHA PHI ALPHA - ALPHA GAMMA
LAMDA CHAPTER INC.,

STATE OF NEW YORK, COUNT Y OF QUEENS, ss

t to
The undersig ned attorney for Petitioner, hereby affirms under penalty of perjury and pursuan
are true
CPLR 2106 that the deponen t has read the petition, and that the contents of the petition
tion
to the deponen t's own knowledge, except as to those matters which are alleged upon informa
t is the
and belief, and as to such matters that deponen t believes them to be true; that the deponen
stated
not
attorney for the aforesaid Petitioner; and that the ground of my belief as to all matters
the
of,
records
and
brooks
and
upon my knowledge are conversations with the agents of,
Petitioner. This affirmat ion is made pursuan t to RPAPL 741.
Dated: March 25, 2013

OUL"'-'
s for Petitione r
A
ALPHA PHI ALPHA - ALPHA GAMM A
LAMDA CHAPT ER INC.,

'
CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
ALPHA GAMMA LAMBDA CHAPTER
Petitioner-Landlord.
-againstBRI AN KIN G

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

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

Respondent-Tenant.

THE HOLDOVER PETITION OF ALPHA GAMMA

LAMBDA CHAPTER landlord
f that:

of the premises alleges, upon information and belie

1. Petitioner is the landlord oftbe premises and

the

petitioner in this action.

2. Respondent BRIAN KING is the person in poss

ession of said premises who
entered in possession thereof pursuant to an oral agree
ment 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 petit
ioner.
4. The premises for which removal is sought
is for Dwellip.g purposes and is
described as follows: ALL ROOMS - IBIRD FLO
OR in building known as 887 St.
Nicholas Avenue, Ne:w York, New York 10032, situa
ted 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 responden
t(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 judgmen

t against respondent for possession,
awarding possession of the premises to petitioner land
lord, and directing the issuance of a
warrant to remove respondent from possession of the prem
ises together with costs and
disbursements of this proceeding, as well as judgmen
t 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 respons e to this Notice shall be

sent and directed to the below-named attorney s 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,
-againstBRIAN KING,
Respondent - Tenant,

L&T Index No.

NOTICE OF PETITION
(NONPAYMENT)
Petitioner's Residence
887 St. Nicholas Avenue
New York, NY 10032

JOHN DOE and JANE DOE,

Respondents - Undertenants.
---------------------~------------------------------------------:X
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 -undertenant s, "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

of use and occupancy of the

inter est there on from February, 2013, an award
be dete rmin ed by the Court,
Premises from April 15, 2014, in an amo unt to
sand Dollars ($10,000.00), the
attor ney's fees in an amo unt no less than Ten Thou
othe r and further relief as this
costs and disbursements of this proceeding and such
.
Court deems just and prop er unde r the circumstances
Dated: New York, New York
May 15,2 014

ALPHA GAMMA LAMBDA CHAPTER

Petitioner

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

Attorney for Petitioner

402 West 145t h Street, 2nd Floor

New York, New York 10031
347.751.0157

Housing Part

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YOR K
)
)
)
)
)
)
)

ALPHA GAM MA LAMBDA,

Petitioner,
-againstBRIAN KING,

Index No. 61012/13

Affirmation in Support of Motion to

Dismiss Pursuant to CPLR 3211

Respondent.

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

Attorney Affirmation of Truth

ice before the courts of this
Michael R. Nemschick, an attorney admitted to pract
hereby affirms under the penalties of perjury that the

state,

following statements are true, except those

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

Allege
The Petition Must be Dismissed Because it Fails to
Law.
ion
ilizat
a Meritorious Exemption to the Rent Stab
upon which it is based. This generally
"RP APL 741 requires that a proceeding state the facts
includes a requirements that the petition assert whet
regulation, or the basis for any alleged exemption."

her the Subject Premises is governed by rent

506 W. 150TH St LLC vPrie r, 2012 NY Slip

issing petition for failure to state a cause of

Op 51 !43(U ) (Civ. Ct. New York Co. 2012) (dism
orious exemption to the Rent Stabilization
action when the petit ioner there failed to allege a merit
ption to the Rent Stabilization Code
Law). A petition that fails to set forth a colorable exem

must

546 W. 156 St. HDFC v. Smalls, 8 Misc 3d

be dismissed for failure to state a cause of action. See
on to dismiss where petitioner there failed to
135{A) (App. Div. 1st Dep' t 2005) (granting a moti
lization Law); Smiley v. Williams, 2009 NY
allege a prop er basis for exemption to the Rent Stabi
e).
Slip Op. 29394 (Civ. Ct. New York Co. 2009) (sam

not subject to rent control or the Rent StaThe petition in this case states: "The Premises are
ing in whic h the Premises are located is a
bilization Law ... by reaso n of the fact that the build
raph of the petition states: 'The Premises are a
multiple dwelling." See Pet. at ii 7. The next parag
tive registration statement on file with the Office
multiple-dwelling and .. there is a currently effec
the fact of the premises being located in a
of Code Enforcement[.]" See Pet. at ii 8. However,
multiple dwelling does not constitute an. exemption

to the Rent Stabilization Law. See Acevedo v.

1st Dep 't 2009) (affirming a trial cour t's disThe Piano Building LLC , 70 AD3 d 124 (App. Div.
ng that the build ing was a multiple dwelling and
missal of a holdover proc eedi ng after determini
not subject to an exem ption under the Rent Stab

ilization Law). Beca use paragraphs 7 and 8 of the

iple dwelling, and because neither paragraph

petition state that the premises are located in a mult
ion Law, the petition fails to state a cause of
states a basis for exemption to the Rent Stabilizat
the petition mus t be dismissed as defec
action pursuant to RP APL 741. Accordingly,

tive. Id.;

798 (App. Div. 1" Dep 't 1992) (dismissing the

also see MSG Pomp Corp. v. Doe, 185 A.D.2d
tions of the ... rent regulatory status of the
petition when the petit ione r made "misrepresenta
premises").
30-Day Notice of Termination
The Petition Mus t be Dismissed Because the
isions of the RPAPL.
Was Not Serv ed in Compliance With the Prov
Proper service of a predicate notice is a prerequisi

te to instituting summary proceedings and

icate notice requ

the failure to effectuate prop er service of a pred

ires dismissal of the proceedings.

20 Misc 3d 423 (Civ. Ct. New York 2008)

Kiamie-Princess Marion Realty Corn. v. Lipton,
d
that the 30-d ay termination notice was not serve
(dismissing holdover proceedings after finding
e of Bow ery Corp. v. Ensley. 182 Misc 2d 471
in compliance with statutory provisions); Hous
(Civ. Ct. New York 1999 ) (same).
Petitioner subm itted an affidavit of service of the
2

termination notice, executed by affiant John

serve the termination notice on

Burnett. Mr. Burnett states in the affidavit that he attempted to
itself reveals that the two
January 24 and January 25, 2013. However, a review of the notice
be sure, it would be a matte r of
signatories did not sign it until on or after January 26, 2013. To
of the notice before the notice
utter impossibility for Mr. Burne tt to attempt personal delivery

was

ting Mr. Burne tt's unwitting

provided to him. The falsity of this averment is self-evident, indica
1
impossibility, it is proof positi ve
attempt to deceive the Court. Being that th.e affidavit states an

with applicable statutory provithat the 30-da y termination notice was not served in accordance
stance
sions. The petition must he dismissed under the foregoing circum

s.

ible time.bending
Astonishingly, Mr. Burne tt's deceit does not end with his incred

averment.

party to this action[.]" To the

To wit, Mr. Burnett also avers in the affidavit that he is "not a
Mr. Burnett personally appeared
contrary, Mr. Burnett is the party. In fact, on February 21, 2013,
with his attorney (Jose Polan co, Esq., also Mr. Burne tt's couns

el in the current action) in a pendi ng

in this Court, Part B, Room 1166,

HP action (King v. Alpha Gamm a Larnbd!b Index No. 195/2013)
at 9:30 am, and held himse lf out before Judge Gonzalez as the

party. The fact ofMr. Burnett being

a party is pivotal becau se New York law forbids the party itself

from personally delivering process

(affirming dismissal of an action

upon an opponent. Wein v. Thom as, 51NY 2d862 (NY 1980)

2103, which authorizes a

because petitio ner served the initiating papers in violation of CPLR
nski, 70 N.Y .2d 604 (NY 1987)
person who is "not a party" to serve process); Kedzielawa v. Smoli
Co. 1991) (dismissing a hold(same); also see Zama r v. Fair, 153 Misc. 2d 913 (Civ. Ct. Bronx
over proceeding after determ ining that the 30-day termination

notice was served by the petitioner

to this action, his affidavit, wherein

in violation of CPLR 2103) . Because Mr. Burnett is a party
dent, is invalid as a matter oflaw .
he purports to have effectuated person al service on the respon
gton D.C. on the evening of January 23 and was
Mr. Burnett also seems to have forgotten that he traveled to Washin
not actually in New York City on the morning of January 24.
1

Accordingly, the petition must be dismissed due to defective service

of process. Berke ley Asso-

(dismissing summary
ciates Compa ny v. Di Nolfi, 122 AD2d 703 (App. Div. l" Dep't 1986)
proceedings where petitio ner failed to effectuate nail and mail service

in accordance with statutory

provisions).

of
These Proceedings Must be Dismissed Because the Petition and Notice
L.
RPAP
the
of
Petition Were Not Served in Compliance With The Provisions
When the petitio n and notice of petition in summary proceedings are

not served in com-

735 authorizes a process

pliance with the RP APL, the petition must be dismissed. Id. RP APL
n upon a conspicuous part"
server to effectuate service by "affixing a copy of the notice and petitio
of the premises.
avers that he affixed
The petitioner has submitted the affidavit of Byran Mcelderry, who
copy of the petition and notice of petition to the door of the premis es

on April 4, 2013, at 1:28pm.

days earlier on April 2 at

Mr. Mceld erry avers furthe r that he made one previous attempt two
ce" or the less rigorous
IO: l Opm. Mr. Mceld erry's single attempt fails to meet the "due diligen
American States Ins. Co. v.
"reasonable application" standards of conduct for a process server.
(holding that two prior atCasado, 2011 NY Slip Op. 31322(U) (Sup. Ct. New York Co. 2011)
failed to make inquiries betempts were insufficient to justify nail and mail when process server
New York Co. 1984) ("The
fore resorting to it); Gintzl er v. Schwarz, 126 Misc. 2d 491 (Civ. Ct.
premises, when no one is at
courts do not like to count service attempts, but a single visit to the
erry's averment that his only
home, will probably not suffice."). Under either standard, Mr. Mceld
effort was one prior attemp t before affixing service to a dwelli ng require

s dismissal of the petition.

not set forth in his

Even if his allege d efforts were deemed sufficient, Mr. Mcelderry does
affidavit the means by which he allegedly gained access to the third

floor. It's unlikely that Mr.

stone, ascended two

Mcelderry walked straigh t through the front door of a three-story brown
4

'

'

'

access
flights of stairs, and started knocking on the respondent's door at l O:OOpm. Ifhe did obtain
Unas averred, he surely spoke to someone in the building who can vouch for him being there.
to
fortunately, as averred in his May 7, 2013, affidavit, the respondent found no service attached
the
his door on or after April 4. As such, there is a dispute as to whether Mr. Mcelderry affixed
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 regardin

g (1) the

to the
alleged regulatory status of the premises and the basis of any alleged exemption; (2) a party
ataction who has also served process in the action; (3) the date on which Mr. Burnett allegedly
the
tempted to serve a 30-day notice at the third floor premises; and/or (4) the date on which
sen30-day notice was allegedly signed by the two signatories. The foregoing material misrepre
v.
tations constitute independent grounds for dismissing this action. See Hegeman Asset LLC
ments
Smith, 5 Misc. 3d 8 (App. Div. 2d Dep 't 2004) ("[A] petition containing material misstate
4
should be dismissed as a matter of equity.") (citing Hughes v. Lenox Hill Hosp., 226 AD2d
22 (2d
(App, Div. 1" Dep 't 1996)); i!l22 see Kentpark Realty Com. v. Lasertone Corp., 3 Misc 3d
ary
App. Term 2004) (remanding for the purpose of dismissal, sanctions, and attorney disciplin
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
from
reimbursement of actual expenses reasonably incurred, as well as attorneys' fees, resulting
be
frivolous conduct - that is, conduct completely without merit in law or fact and which cannot

..

'

ication, or reversal of existing law.

supported by a reasonable argument for an extension, modif
(reversing a trial court 's denial of finanPahl v. Kassis, 182 AD2d 22 (App. Div. I st Dep't 1992)
determining that the losing party
cial sanctions and award ing $3,341 to prevailing party after
rized to award costs and attorn
engaged in frivolous conduct). Similarly, this Court is autho
"primarily to haras
resulting from conduct in litigation that was undertaken

had

eys fess

s or maliciously injure"

(App. Div. 1st Dep' t 1990) (imposing

_someone. Jones v. Cama r Realty Corp. , 167 AD2d 285_
s for the purpo se of harassing and in$2,000 sanction upon an attorney that filed frivolous paper
juring the opposing party).
arose only after the respondent
As set forth in the respo ndent 's affidavit, the instant suit
ordering the petitioner to make repair
obtained an order to show cause, dated January 24, 2013,
Gonzalez and
the premises. That HP action is still pendi ng befor e Judge

s at

the repairs have yet to be

s to have attempted and achieved service

made. Importantly, the dates in which Mr. Burnett claim
respondent asserted his tenant rights
of the 30-da y notice corre spond to the dates in which the

to make the repairs by falsely assert

This indicates Mr. Burn ett's effort to avoid his obligations

ing

of January 24, prior to the respo ndent 's

that the lease had ended on its own terms on the morning
t have been a clever, if not a desperate,
afternoon application for an order to show cause. It migh
is demonstrably false and otherwise
ploy if it were not for the fact that Mr. Burn ett's affidavit
be sure, because Mr. Burn ett's credibility
invalid by virtue of him being a party to this action. To

ability to discredit Mr. King - by insinuand ultim ate liability in the HP action could tum on his
the HP action - it was perhaps preating that he ceased to be a bona fide tenan t before he filed
vit that would sugge
dictable that Mr. Burn ett woul d inser t dates in an affida

st that Mr. King filed

es are understandable in light of the

the HP action to avoid eviction. Whil e Mr. Burn ett's motiv
ach renders this litigation frivolous.
liability he faced in the HP action, his fraudulent appro

.'
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 frivolous litigation practices).

Conclusion
Pursuant to the authorities, arguments, and analysis set forth above, respondent respectfully requests that the Court enter an order dismissing this holdover proceedin g 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

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

Fax: +i {212) 374-805$

To:

Page 1

of 7 07li712014 7:f1

Facsimile Cover Sheet

To:
Company:
Phone:
Fax:

From:
Company:
Phone:
Fax:
Date:
Pages including this
cover page:

+1 (212) 374-8053

Brian King
KFIRM LLP
+1 (202) 251-2121
(718) 313-0050

07/17/2014
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

To:

Fax: +1 (212) 374-8053

Page 2 of

7 07117120t4 7;11

Brian King, Esq.

KFIRM LLP
40 Wall Street, zgth Floor
New York, NY 10005

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

July 16, 2014

NYC Criminal Court
Richmond County
67 Targee Street
Staten Island, NY 10304
Via First-Class Mail and
Facsimile (718) 390-8405
Re People v. Paige-2013Rl009336-AP2 DV

Your Honor:
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.
Respectfully,

ts/Byt;a,yv K~
Brian King, Esq.
cc: Judge Fern A Fisher; Judge Brenda Spears

From: Brian King

Fi!X: (718) 313-0050

To:

Fax; +1 (212) 374-8053

Page 3 of 7 0711712014 7:11

Brian King, Esq.

KFIRM lLP
40 Wall Street, 28'0 Floor
New York, NY 10005

Phone: 2022512121
Fax: 718313-0050
July 15. 20!4

George Peters, Esq.

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

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.

Fax: (718) 313-0050

From: Brian King

Fax: +1 {21:2) 374-0053

To:

CITY COURT OFTHECITY OF NEW YORK

COUNTY OF NEW YORK - Part H

Page 4 of 7 0711712014 7:11

ALPHA GAMMA LAMBDA,

L&T lntkx Nt>. 14N065163
Petitioner,

against

Affirmation of Engagement Pursuant

to 22 NYCRR 125.1

BRIAN KING, er al..

Respondent(s}.

_____ 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,

2.

! am proceeding prose until my att\irney retum8 from out of town.

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
1

under the CPLR, the RPAPL, 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.

'

i'

From: Brian KJng

4.

Fax: +1 {212) 374-0053

To:

Fax: (718) 313-0050

Page $ of 7 07/1712014 7;1i

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.

1
Specifically, the Kclll'. matte.r is enti.tled to a preference pursuant ro 22 NYCRR I25. 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
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)
1

From: Brian King

Fax: (718) 313-0050

Fax: +1 (212) 374.9053

To:

to CPLR 3022, given the Petitionertimely notice of the defect.

Page 6 of 7 07117a<J14 7:11

_s_~!\ attached

7- 15-14 Letterto

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

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

__..
._

. ___
_ King,
Esq.
__.._

--

~--~

~rian

kFlRMLLP

.
'

1
40 Wall St., 2s Floor

New York, NY 10005

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

From: Brian King

Fax: +1 (:212) $74-8053

To:

Fax: (718) 313-0050

Page 7 of 7 07/17/2014 7:11

CITY COURT OF THE CITY OF Nb-W YORK

COUNTY OF NEW YORK - Part H

-- -- - x

ALPHA GAMMA LAMBDA.

L&T Index No.14N065163

Petitioner,

Affirmation of Service by Postal Mail

- against-

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:
ement Pursu aut to
On .July l5, 2014. the undersigned served the Affirmation of Engag
envelope with postage
22 NYCRR 125.1, by causing a copy of the same to be placed in m1
l depository under the
affo(ed and further causing, that envelope to be placed in an officia
within the State of New
exclusive care and custody of the United S1a1e.~ Post Office DC)Xlrtment
York. addressed to rhe following recipicnt(s):

Oeoige Peters, Esq.

Law Offices of Ge<Jrge T. Peters

111
402 W<:st 145 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/luQhw SC

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 predicam ent - 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 apartmen t 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-regul ated 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 guarantee s 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-yearold 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-lawyersln..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-towprovldelawyers-in-new-york-city-housing-court-gains-momentmn,html

415

CIVIL COURT OF THE CITY OF NEW YORK

111 CENTRE STREl';T
NEW YORK, NY 10013

HON. DAVID J, KAPLAN

SUPERVISING JUDGE, HOUSING COURT
NEW YORK COUNiY

August 13, 2014

Brian King, Esq.

KFirmLLP
40 Wall Street, 2gh Floor
New York, New York 10005

Re: Alpha Gamma Lamda v Brian King, New

York County L&T Index No. 65163/2014
Dear Mr. King:

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 .

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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 chapter in
some form?