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ConstitutionalCarrot t1_itm6qh0 wrote

Reply to comment by SenorJuansie in Where Are the Free Housing Attorneys NYC Promised to Tenants Facing Eviction? - Hell Gate by LittleWind_

My firm represented non-for profit landlords, we drafted our own petitions and did not seek legal fees, the leases we drafted never had legal fee clauses, and so the reciprocal fee provision under RPL 234 never was actionable. But that’s just my point they don’t look at the papers and just use their form motions, throwing in everything under the sun.

Most of the time legal aid would make pre-answer dismissal motions, (dismissal after an answer is treated as summary judgment, which is a higher burden). Even if they agreed in multiple stips to submit answers by a date certain, they would resist filing an answer (even just a general denial) literally until the judge transfers the case to the trial part to preserve their right to a pre-answer dismissal.

If the tenant has asserted a counter-claim it’s not dismissal as of right, but an overworked legal aid attorney would just stip to discontinue without prejudice to any remaining balance and reserve their right to claim repairs in the future and advise the tenant to call 311. Better than keeping the possessory judgment alive on the off chance tenant misses a payment by the next court appearance. In an HP case for repairs started by the tenant, sure, the LL can’t discontinue, but it’s because the tenant is the plaintiff.

Legal aid’s impetus is just to draw out the case so their client remains in possession for longer. Then they complain about how many cases are clogging the docket as if they have no control over the situation.

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SenorJuansie t1_itm7sgm wrote

> the leases we drafted never had legal fee clauses, and so the reciprocal fee provision under RPL 234 never was actionable. But that’s just my point they don’t look at the papers and just use their form motions

okay, you're right. that's sloppy. although if there's an RS issue and the possibility of overcharge, you can get fees, as you know.

> resist filing an answer

i've never seen or done this. usually the tenant has already answered pro se, so it's irrelevant. what agency would do this?

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ConstitutionalCarrot t1_itm8r0s wrote

Overcharge can entitle a tenant to recovery of treble damages, but whether and to what extent a tenant’s attorney would be entitled to a cut of those enhanced damages would depend on the retainer agreement. Also, legal fees, late fees, etc. are not technically part of the rent overcharge calculation and should be severed to a plenary action.

Even if a tenant files a pro se answer, once they get an attorney, the attorney can move for leave to file an amended answer, saying that the tenant did not know all their rights at the time they filed pro se. They have to attach the proposed amended answer to that motion, but once the motion is granted they can “forget” to then file that answer until the eve of trial.

You’d also be surprised how many people aren’t willing to stand on line half a day to file that initial answer when they know they can show up after a default is entered against them and do a stip or get a 1st adjournment to seek counsel.

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SenorJuansie t1_itmawm2 wrote

> they can “forget” to then file that answer until the eve of trial.

well...i dunno how bad that is. i've defenitely done this, and i've had LL side opponents do the same thing in HP actions or supreme court. I wouldn't really call that prejudicial. and i don't think it has anything to do with how seriously a dispositive motion will be taken.

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SenorJuansie t1_itmad8j wrote

> but whether and to what extent a tenant’s attorney would be entitled to a cut of those enhanced damages would depend on the retainer agreement.

That has nothing to do with whether you assert a claim for attorney's fees, and a free lawyer is equally entitled to assert a claim for fees as anyone else. i'm sure you know the case law that says that.

i'll tell you my insider experience: i've only once gone far enough to do a fees hearing after winning trial rather than bargaining away fees at an earlier junction. i then settled by waiving the fees in exchange for T getting a few months free. higher ups at my agency approved this. if i had taken the fees, they would have gone to my agency 100%.

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ConstitutionalCarrot t1_itmbl7u wrote

Maybe I didn’t my understand why you brought up overcharge claims then, because I’m not saying they can never seek legal fees, but that they don’t do their due diligence on whether they would actually be able to recover legal fees under the RPL before stating a claim.

It is just another delay tactic - they don’t have to reserve their right to seek it to be able to recover at or even after trial, the individual attorney won’t benefit from it, as you point out, and they agency doesn’t usually consider it worth their time to pursue unless it’s a very involved case, since they just get paid from the municipality and will never go under like a private firm would.

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SenorJuansie t1_itmccaj wrote

> and will never go under like a private firm would.

i understand landlord's outrage over this. the LL firms had a lean system in housing court based on pro se opponents and zero substantive litigation occuring.

but i'm not sympathetic to it at all. i don't agree that most tenant's side litigation is frivolous, and as for delay, that is the standard for defendant-side litigation since the beginning of time. And i've done plenty of affirmative cases against the usual players in the landlord's bar (in private practice), and they can delay and waste my client's money as good as any defense lawyer.

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ConstitutionalCarrot t1_itmf4l0 wrote

Sure, and all this is why I left L&T practice, but then legal aid still doesn’t have a leg to stand on to complain that they are overworked and underpaid when they could prioritize those cases where real defenses exist on the facts, against actual slumlords who are breaking the law.

They are incentivized to take this tact as to all cases, however, as they are in a position that benefits uniquely from delay since it allows their client to remain in possession without paying legal fees and often without paying rent.

When LL attnys delay it prejudices their clients who are actually paying legal fees, such that the cost of litigation is weighed against the benefit of proceeding with a frivolous case.

Ultimately, and this is what I would always discuss with the legal aid attorneys outside of court, the system benefits the attorneys on both sides. Legal aid just likes to take a bit more umbrage, in my experience.

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