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Motion for Dismissal

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accessdan

Junior Member
I terminated a contract on an apartment 5 months early in NY, September of 2007 because I moved to Wisconsin. During that time, I had tried to make arrangements for an amount to pay but no luck. I was contacted last month by the apartment's law office demanding payment. They served me with papers filed with the county supreme court titled "Consumer Credit Transactin" demanding payment in full.

Through my research I found out about a "Motion of Dismissal" My question is would I be able to file this because I am no longer living in NY nor do I own any property there.
 


tranquility

Senior Member
I don't understand what all is happening, but I state with confidence, no. Your next step is not to file a motion of dismissal.

Give more of a background and maybe somenone can help you. But, I'd avoid playing legal games.
 

accessdan

Junior Member
Thanks for the reply. The summons that I received is titled "Consumer Credit Transaction" and it is demanding payment in full and stipulates that if I don't contact the apartment's attorney within 30 days since I'm out of state then I'm defaulting and they can file a judgement against me.

I had already offered a settlement, which they refused. The breakdown of charges that they gave me is also wrong with just the simple math. They show 5 months of charges but compute it as six and are also charging me the full price of a carpet. After doing some research, I learned that the cost for the replacement carpet is done on a depreciation basis, so if the carpet cost $1000 and had a life of 5 years and I was there 3 years then I would owe $400. Additionally, one of my utilities was not cancelled for whatever reason and the charges for those months that I wasn't there would indicate that the apartment was occupied.

I had also asked their attorney to provide me with receipts for the carpet and proof that the apartment was not rented during the same time that they are trying to charge me but they refuse. If anyone can provide me more guidance with the "Motion for Dismissal" and whether or not this is an option for me, I would really appreciate it.
 

FarmerJ

Senior Member
Dan why dont you first learn if the former LL went to court and won a judgement against you by contacting the courts and searching on your own name back in ny.
 

accessdan

Junior Member
Hi Farmer,

No, they didn't win a judgement against me. The notice says that I have 30 days to respond and that's when everything will take place as far as a judgement if I don't respond. So, would filing a Motion of Dismissal be an option for me since I no longer live in NY nor do I have any ties there such as property that I own.
 

MIRAKALES

Senior Member
A Motion for Dismissal is generally based in a legal or logistical reason to vacate the action. The lease agreement is the only contract between LL and tenant. There is no legal reason for a court to dismiss an action for non-payment of rent and tenant lease violation. A review of the lease agreement will indicate that tenant is obligated to pay the rent until lease expiration or until LL has obtained a new qualified replacement tenant. It would be in tenant’s best interest to pay the rent owed or appear in court (or hire an attorney) to represent their interests. The relocation due to a job transfer is not a legal defense.
 

ecmst12

Senior Member
They haven't filed anything against you yet so there's nothing to dismiss. They should file, if they are going to, where you currently live. You have no grounds to dismiss if they DO file because you don't dispute you owe them money, only the amount. So if they sue, you go to court, present the numbers you believe to be correct, and hope the judge agrees. They will present their evidence as well. Make sure you save correspondence with them so you can show the judge you made a good faith effort to settle with them and they did not cooperate, so hopefully you will not be ordered to pay their attorney fees.
 

accessdan

Junior Member
Thanks for the feedback, so if I send them an offer and they don't accept and decide that they want to take it to court, would they have to have the case where I live now?

Also, if I request that they send me proof such as the cost of the carpet and proof that nobody was living in the apartment during the same period that they are trying to bill me for are they required to send me that?
 

ecmst12

Senior Member
If they file in NY, you can request to change the venue to your current location.

It's tough to prove a negative. You might have to have someone go up there and talk to the current tenants or neighbors, find out how long the apartment was vacant. They did have a duty to mitigate so they would have to provide proof that they at least ATTEMPTED to find new tenants. But they don't have to actually give you anything unless it gets to the discovery phase of a lawsuit.
 

accessdan

Junior Member
I really appreciate all the advice. It's helping me alot.

So, in your opinion if the amount that they're charging me is $4500.00, which is actually miscalculated, not even from me disputing but fromthe math alone with their figures, it actually comes out to around $4000.00 but they're still saying that I owe them $4500.00.

Anyway, back to my point. Should I offer a settlement and at that time tell them that I want proof that they were actively seeking a tenant? Also, another thing I forgot to mention, I think is that for whatever reason, my natural gas account was never cancelled, so I was billed for 4 months after I had left and the usage on those bills would indicate that someone was occupying the apartment because they drastically increased during the winter months and were right around the same amount as they were when I was living there. Should I mention that when I right and tell them that I am willing to do a settlement except for the 4 months that are in question where it would appear that the apartment was occupied until they provide me proof that it was vacant and if it was vacant, I will agree to pay the charges.
 

tdelker

Junior Member
I really appreciate all the advice. It's helping me alot.

So, in your opinion if the amount that they're charging me is $4500.00, which is actually miscalculated, not even from me disputing but fromthe math alone with their figures, it actually comes out to around $4000.00 but they're still saying that I owe them $4500.00.

Anyway, back to my point. Should I offer a settlement and at that time tell them that I want proof that they were actively seeking a tenant? Also, another thing I forgot to mention, I think is that for whatever reason, my natural gas account was never cancelled, so I was billed for 4 months after I had left and the usage on those bills would indicate that someone was occupying the apartment because they drastically increased during the winter months and were right around the same amount as they were when I was living there. Should I mention that when I right and tell them that I am willing to do a settlement except for the 4 months that are in question where it would appear that the apartment was occupied until they provide me proof that it was vacant and if it was vacant, I will agree to pay the charges.
I'm sure the LL turned the heat on during the winter so the pipes wouldn't freeze. It doesn't prove someone lives there. Most utilities are set up to transfer to LL when tenant cancels them, so LL was probably expecting to pay for those utilties (but never recieved a bill).
 

You Are Guilty

Senior Member
Whoa, whoa, whoa! Are you sure what you're holding isn't a summons w/notice or a summons and complaint (i.e. an actual lawsuit)? (The "contact the apartment's attorney within 30 days since I'm out of state then I'm defaulting and they can file a judgement against me" sounds suspiciously like the language used in a formal summons).
You can check the court's files online here: http://iapps.courts.state.ny.us/webcivil/ecourtsMain

If it's NOT an actual lawsuit, proceed as above. If it IS a suit, you need to file an Answer (or a demand for a complaint if you have a summons with notice). Failure to do so within 30 days means you can lose the case on procedural grounds even if you have a valid defense.
 
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MIRAKALES

Senior Member
A jurisdictional change of venue to a different court is only allowed when the court of filing does not have authority (jurisdiction) over the issues in the case. In the matter of property, the local and county court always has jurisdiction regarding the premises where property is located. In other words, no legal venue change can be granted from New York to Wisconsin.
For what it’s worth, all of these issues raised are addressed in a standard lease agreement. Legal actions, unpaid rent, lease violations, etc. It is not possible to circumvent the lease agreement. (Keyword: a-g-r-e-e-m-e-n-t) Both LL and tenant agreed to lease the premises in accordance with the lease. Read the lease!
 

ecmst12

Senior Member
Except this isn't a housing court matter, it's a debt collection. And lawsuits to collect a debt are supposed to be filed in the DEBTOR'S home venue. Filing in NY when they know he lives out of state is deliberately trying to force a default judgement. It's a valid motion even if it gets denied, but I suspect it won't be.
 

accessdan

Junior Member
This is really providing me a lot of insight.

ecmst12,

Are you saying that if I file a "Motion of Dismissal" that chances are that it would get approved or are you saying if I file for a change of venue to have it held in Wisconsin vice NY that, that would likely get approved?

As of right now, I'm waiting on receipts from the gas company and old phone records that show the calls that I did in fact make to the landlord trying to resolve this issue. I was planning on including all of that in the letter that I'm writing to their attorney who is designated as the person who I have to respond to within the 30 days.

In my letter, I was basically going to say that I'm not contesting that I owe money but just the amount and agree that if they sign a written statement affirming that the apartment they are trying to charge me for was not rented nor was there any contractors staying in that apartment during the same period that they are charging me for then I will agree to pay the charges for those months, however, I will not pay the late charges because I did make an effort to resolve this. I'm also requesting that they send me copies of the receipts for the new carpet and for the replaced carpet and if they do not have the receipt then a signed affirmation of when the carpet was layed down in the apartment and price of the carpet. I will then agree to pay the amount after the depreciation is factored in. I will additionally be sending in an inital good faith payment in the amount of $200.00 and agree to pay on the first of each month and give them my authorization that if at anytime I am more than 30 days late with a payment that I will not contest the legality of the monies due and they can garnish my wages.

Any thoughts on this letter? Is this a good idea or not so much?
 

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