This article does not discuss all the legal issues that may be heard by the judge in any particular trial. However, this article should give the reader general information so that the reader can generally understand how a trial works, how the reader should proceed while in court and what rights the reader has after the trial is over.
Trials in Housing Court are usually heard by a Judge, without a jury because leases generally contain a jury waiver provision. The Judge can decide a case only upon legally admissible evidence. Rules of evidence generally require original documents and prohibit hearsay (with some exceptions) and copies (with some exceptions). Therefore, the burden is upon the reader to present proper proof to the Judge to prove or disprove the claims that are being made in the lawsuit. Parties are expected to have all their evidence in Court on the day the case is scheduled for trial.
After the trial is over, the Judge will render a judgment. A judgment is an official written document issued by the Court determining the issues in the parties’ dispute.
The reader should bring all evidence necessary to prove the reader’s claim or defense. Anything that will help prove the facts in dispute should be brought to Court. This includes written agreements, leases, receipts, correspondence and photographs. Originals (not photocopies) may be required, if available. All documents from government agencies must be certified by the agency producing such documents. A certification is a statement that the documents are true copies of an agency’s records. Someone at the agency should be able to tell the reader how to get the records certified.
Sworn testimony, including the reader’s own testimony, is evidence. Any witness whose testimony is important to the reader’s case may testify in person before the Court. This can be someone who witnessed the events or occurrences or someone whose special knowledge and experience makes his/her testimony relevant as an expert on an issue before the Court, as for example, the cause of existing conditions, the way to remedy conditions and the cost of the services or repairs that may be or have been required. An affidavit, a signed and notarized statement, cannot be used in the place of live testimony and is not admissible as evidence. An affidavit, unlike a live witness, cannot be cross-examined.
If the reader is unable to get a witness to appear voluntarily or the reader needs certain records from a government agency, the reader may apply to the Court for issuance of a subpoena. A subpoena is a legal document that commands the person named in the subpoena to appear in Court to testify. A “subpoena duces tecum” is a legal document that directs someone including a City agency, to produce in court a written document or record needed in Court. For example, the NYC Department of Buildings, the DHCR, HPD, the police department, the fire department and the Department of Social Service records can be subpoenaed. Either party may apply for a subpoena up to 48 hours before the trial date. An expert witness may not be compelled to testify by subpoena, but the reader may pay the expert witness for coming to Court to testify.
The Landlord-Tenant Clerk’s office has subpoena forms. After the reader has filled out the forms, the Clerk will present the subpoena to the Judge for the Judge’s signature. The Clerk will tell the reader how to serve a subpoena. The Clerk will also tell the reader whether a fee must be paid to the subpoenaed witness and, if so, how much.
Generally, the landlord presents his/her case first. After being sworn as a witness, the landlord or the landlord’s managing agent will tell the landlord’s version of the claims in the case. The landlord may offer certain documents into evidence. When the landlord or the person on the landlord’s behalf has finished testifying, the tenant has the right to ask questions. This is called cross-examination. Sometimes a Judge may ask some questions to clarify matters. Other witnesses can be presented in support of the landlord’s claims, and they, too, can be cross-examined by the tenant or may be asked questions by the Judge.
The tenant will then be sworn as a witness and tell his/her side of the story and present evidence. When the tenant has finished testifying, the landlord has the right to cross-examine the tenant. Sometimes the Judge may ask some questions to clarify matters. Other witnesses can be presented in support of the tenant’s claims, and they, too, can be cross-examined by the landlord or may be asked questions by the Judge.
Parties to a lawsuit have a right to object to the introduction of evidence or the way a question is being asked or answered. The proper way to object is to say “objection.” The Judge may then ask what the basis for the objection is. If the Judge agrees with the objection, the Judge will say “sustained” and the evidence will not be admitted or considered by the Judge. If the Judge disagrees with the objection, the Judge will say “overruled” and the evidence will be admitted and considered by the Judge.
Parties to a lawsuit are expected to be courteous to each other and to the Court. Parties should speak only to the Judge and not to each other when making legal arguments. The parties should not direct their arguments to one another, but rather should direct argument to the attention of the Judge. If a party disagrees with what the other side is saying, the party should tell the Judge.
Parties should not interrupt someone who is speaking except to raise an objection. A party should wait until the other side or the Judge is finished speaking and then say what he/she has to say.
The Judge is not allowed to have ex parte communications. An ex parte communication is a conversation or writing between a Judge and only one party to a lawsuit when the other side was not notified in advance that the communication would occur. Therefore, a party should not try to contact a Judge without the other side being given a chance to be present at the discussion.
It is sometimes better to settle a case than to try it. A settlement is a voluntary, binding agreement that resolves the difference between the parties to a lawsuit. It is put in writing in a document that is sometimes called a stipulation. In a settlement each party can help determine the outcome of a case. In a trial, only a Judge decides its outcome. However, no one can force either party to settle a case. Also, no case should be settled unless and until the settlement has been reviewed by a Judge and each party understands the terms of the agreement.
Parties have a right to appeal a Judge’s decision at the end of a case. A settlement cannot be appealed. There are strict time limits on the right to appeal. Appeals can be costly because there is a fee for filing the Notice of Appeal and for the transcript of the trial. The Court has the power to grant Poor Person’s Relief. Poor Person’s Relief is when the Court waives payment of certain Court costs if the Court is satisfied that a party cannot afford to pay those costs.
The fact that a party files a Notice of Appeal does not mean that an eviction cannot take place. The tenant, who is trying to avoid eviction, must also apply to an appellate Judge for a stay of eviction. Often the Court will grant a stay only if certain money, usually the judgment amount, is deposited in Court.
Each Court has an Appeal’s Clerk who can give the appealing party information about how to apply for Poor Person’s Relief or ask to stay an eviction and how to file an appeal. Ask at the Landlord-Tenant Clerk’s office where the Appeal’s Clerk is located.
The information you obtain at this site and specifically from this article is not, nor is it intended to be, legal advice specific to your particular case. You should consult an experienced attorney for individual advice regarding your own situation. Landlord/Tenant litigation has been a substantial practice emphasis of our firm for more than 29 years. Don’t be blindsided by your adversary.