Why a Landlord Cannot Evict & Collect Past Due Rent at the Same Time

Usually the parties in a lawsuit resolve all disputes against one another in one proceeding, but Landlord Tenant Law is a different. A landlord cannot both evict a tenant and obtain a judgement for past due rent from the the tenant in the same proceeding. A landlord must send a termination notice to the tenant first before commencing a holdover proceeding to evict the tenant. If the landlord wants to get past due rent from the tenant they must commence a non-payment proceeding to obtain a judgement from the tenant. In most cases, the tenant has not been paying rent because they don’t have the money to pay it. In that situation it does not make sense for the landlord to start with a nonpayment proceeding. The landlord would typically commence a holdover proceeding. The landlord must be careful to follow the both the rules of Civil Procedure for a Civil Lawsuit and procedures outlined in the the New York State Real Property Actions and Proceedings Law (RPAPL). If any one of the procedural requirements are not followed, the Landlord essentially gives the tenant’s lawyer an excuse to use to have the action dismissed. Therefore it is important for a landlord to obtain the counsel of an attorney who practices landlord tenant law. Otherwise the Landlord will waste time and money commencing an action against a tenant just to restart the process all over again. Diana Mohyi Attorney at Law P.C. is available to represent you in your landlord tenant proceeding whether you are a landlord who is not being paid or a tenant who is being harrassed.

Why The Best Interests of Your Children in a Divorce Are Not Your Interests

When a married couple with minor children seeks a divorce they often forget that their interests are not automatically aligned with the best interests of their child. If they cannot agree on a custody and visitation arrangement, the Court steps in to protect the children by appointing a children’s attorney aka guardian ad litem and by appointing at least one forensic psychologist or physician to evaluate which home environment would be better for the children. As you may suspect these paraprofessionals can contribute to a very expensive divorce bill. Therefore it is best that the parties come to a mutual decision about custody and visitation without involving third parties who will be required to approve any agreement the parents make once they get involved.

According to New York’s Domestic Relations Law, the parent to be awarded custody is not an automatic assumption. DRL 70 states that “there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child.’ DRL 240 also echos that language. This concept has been expanded in New York’s body of case law resulting in factors which help a court determine what is in the best interests of the child.

(1) The parent who has been the primary caretaker;
(2) The age and health of the parties;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each parent provides;
(5) The ability of each parent to provide for the child’s emotional and intellectual development;
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been in effect; and
(8) The desires of the child.

Ultimately, unless being around a certain parent is inherently bad for a child, a child needs both parents. A child is not property. A child is a human being who only has one set of biological parents. No matter how much a party may hate their spouse, there is nothing they can do to change that so they might as well start by agreeing for the sake of their child.

Why No Fault Divorce Is Always The Best Choice

Even if you are adamant to point the finger at your spouse for the reason you want a divorce, it makes alot more sense to choose the ‘No Fault’ option not only for the sake of time but also resources.

In New York, it is typical that the parties will file for a ‘no fault divorce’ otherwise known as ‘irretrievable breakdown’ because then there is no need to prove the grounds upon which the parties are seeking a divorce. For example, no need to prove the spouse actually cheated on you which not only sounds like it could be messy but it is. Choosing that route will cost alot of time and effort and may even result in you not being able to prove the grounds of your divorce, which is a requirement to obtain a divorce.

According to Section 170 of the New York Domestic Relations Law, there are 7 grounds upon which a divorce may be obtained:

(1) Cruel and Inhumane Treatment

(2) Abandonment

(3) Confinement aka Prison Sentence of a Spouse

(4) Adultery

(5) Judgement or Decree of Separation

(6) Written Separation Agreement

(7) Irretrievable Breakdown for a Period of 6 Months aka the ‘No Fault’ divorce.

If you choose the ‘No Fault’ option you won’t have to hang your laundry out to dry longer than it should. Diana Mohyi Attorney at Law P.C. can help you initiate the divorce and assist you in coming to a resolution that will help you start the next chapter of your life.