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  1. #1

    Default Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwelling

    My question involves an eviction in the state of: New York, NYC

    I think I might have stumped the lawyers as I can't get any to respond directly to this question. I was battling this lawyer on AVVO only for him to avoid the question and go into legal ramifications for renting a basement in general. I want to clarify the possible misinformation on the internet for educational purposes and debate. I am not a fan of misinformation definitely from questions answered by lawyers even though it does not constitute legal advice.

    Everywhere I look online, lawyer blogs and regular citizens state you can't collect rent from ANY illegal apartment. I am challenging that for a dwelling that has no more than 2 families.

    Everybody keeps quoting the case Mary Beth Acquino, Plantiff, v. Gilbert Ballester where it is said "the Court noted in its opinion that "no landlord-tenant relationship can exist where there is an illegal apartment. The Court cited the case of Fazio v. Kelly, 2003 WL 22227363. " and "The Court then decided that because of the illegal occupancy, the contract between the parties (the lease) is "unenforceable"." and "The Court further notes that the New York City Administrative Code (26NYCAC ¤125) makes the failure to comply with the building code subject to criminal penalties and civil fines. Judge Straniere makes it clear that the Landlord cannot collect rent on an illegal apartment."

    I think lawyers are missing the fact that this case was for an MDU and would not apply to a one family house renting an illegal basement. The MDU law Section 4.7 defines "multiple dwelling" as a "dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other".

    The court in the same case stated above that " there is no statute prohibiting the collection of rent from an illegal one or two family dwelling."


    Case law supports my argument. The case from the Supreme Court, Appellate Term, Second Department, decided the case of Pickering v Chappe, 2010 NY Slip Op 20326 (29 Misc 3d 6) "there is no bar to the recovery of rent when a dwelling that has a certificate of occupancy as a one-family dwelling contains an illegal apartment. It is only in the Multiple Dwelling Law that the Legislature has seen fit to impose a forfeiture of rent as a penalty.”

    Although this court does not have direct jurisdiction on NYC like it does Nassau and Suffolk County, under vertical stare decisis, a trial court must adhere to a ruling of any NY appellate court regardless of the division, unless their own or another division has ruled differently.

    I could not find any case law from any other division or district. There is also no local statute that would interfere with this common law ruling.

    So unless a trial judge can uncover case law from another appeals court in NY, isn't the judge required to rule based on Pickering v Chappe regardless of the lower courts interpretation of an illegal unenforceable contract? I keep hearing people who rent their basement say they are out of luck and let the scammers prevail. I am not advocating a slum but the ones I have seen were completed by licensed contractors and would be considered safe and legal by other states standards. In NYC if a basement is more than 50% underground it is considered a cellar and illegal even if everything else is above and beyond code.


    Again this is for information purposes only as I am not a landlord. I just hate that some people try to use the law for retaliation and not for the greater good. I am a fan of Judge Judy's quote "you ate the entire steak". Shes uses this quote as a way of explaining why a person who has neglected/refused paying rent or paying for a service has to pay. If you think the apartment is so unsafe, why are you postponing the eviction and staying in an unsafe place in some cases close to a year? Why only when you raise the rent or are given 30 days does the place you lived in for years become unsafe? I do believe that a landlord has the right to be fined by the local government for violating the law. If both people do wrong both should lose.

    Sorry for the long post but I am eager to confirm if my interpretation of the law holds true.

  2. #2
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    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    without getting too deep into this tonight, here are a couple thoughts:





    I think you are confusing a situation where the room cannot legally be considered an apartment and one where there is no permit issued by the municipality to show it was registered as an apartment.

    they are different situations and courts can make opposing rulings due to the different facts involved.



    in one issue, contract law is all that is required to determine whether rent is due. For a basement to be legally considered a sleeping room there must be certain requirements met. If those are not met, the room cannot be used as a sleeping room hence any contract that holds it out as an apartment is unenforceable due to the fact it is illegal to rent out the room as a sleeping room. As such, the courts will not assist in recovering money owed based on an illegal activity. the legality, or illegality, exists between the tenant and the landlord. clean hands doctrine would prevent a court from demanding said tenant pay rent owed per the contract.


    in the other where a room legally eligible to be used as an apartment although without proper permitting, a court could surely rule the rent is collectible as the only damage is to the government. The relationship between the landlord and tenant is in itself not illegal. The legality lies between the landlord and the municipality and that in itself is not cause to necessarily refuse to require the tenant to pay


    I am not advocating a slum but the ones I have seen were completed by licensed contractors and would be considered safe and legal by other states standards
    what other state's standards are is irrelevant. NY standards are the only thing to consider.

    btw: I don't know of a state in the country that does not require a basement, that is used as a sleeping room, to have at least two means of egress. That alone is often the cause a basement is not legally able to be used as a sleeping room.


    I am a fan of Judge Judy's quote "you ate the entire steak". Shes uses this quote as a way of explaining why a person who has neglected/refused paying rent or paying for a service has to pay.
    first, I would caution you about learning from JJ. I have seen too many rulings of hers that have no basis in law. After all, her show is simply intended to be entertainment and little else.


    secondly, using that same argument, if I rented out my kid as a hooker that too would be enforceable if the John refused to pay.

    It is not illegal to sell a customer a steak they may not like how it was prepared. It is illegal to rent a room that cannot legally qualify as an apartment.

  3. #3
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    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    When you come back with a real life scenario and clarify all the variables, we can give you and good answer.

  4. #4
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    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    The Acquino notes that "The mortgage entered into by the defendant to fund the purchase of the property recites that it is 'improved by a 1 or 2 family dwelling'", and also notes that "There is no showing whether the apartment was in a cellar or a basement under Multiple Dwelling Law § 4 (37) and (38), respectively." The court found that in the context of that lawsuit, it didn't matter:
    Quote Quoting Acquino v Ballester
    As this is an illegal occupancy, any agreement between the parties is unenforceable. Multiple Dwelling Law § 302 (1) (b) provides: "No rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent." Although there is no statute prohibiting the collection of rent from illegal one and two family dwellings, no rent is recoverable because the contract is illegal, the apartment is presumably unsafe because it is not built to code, and public policy requires such a finding. Not to do so encourages people to ignore the law and place the health and safety of the building's occupants and first-responders at risk.
    The court found that a rental agreement could not be enforced through the courts, whether or not the house was a MDU: If the house was a MDU, the collection of rent would be barred by statute; if not, the collection of rent would be barred by the fact that the rental agreement was an unlawful contract that the courts would not enforce. The court also found that although the unit was unlawful, the tenant was not entitled to recover from the landlord the rent she had paid to reside in the unit. Her recovery was for the amount of the security deposit and her moving costs, incurred after the apartment was declared unlawful. Pickering largely accords with Acquino, as although it finds rent enforceable during the period in which the tenant is in residence, the tenant is free to end the tenancy at any time based upon the illegality of the unit with no further obligation to the landlord.

    Acquino did not involve an attempt to recover rent from the former tenant, as opposed to an effort to keep the security deposit, and the biggest difference between Acquino and Pickering is that the Acquino court found that the landlord of an illegal unit had no right to keep any portion of the security deposit while the Pickering court found no such constraint. However, unlike in Pickering where the security deposit was applied to rent, the landlord in the Acquino court was attempting to keep the lion's share of the security deposit over allegations of damage to the unit, and the Acquino court noted also that the landlord had presented no evidence of damage. Also, although the Acquino court implies that it might not enforce rent owed to the landlord for a period prior to the tenant's vacating the unlawful unit, that issue was not before the court.

    It would be foolish for a landlord to rent an illegal unit in NYC in defiance of Acquino, as it's quite possible that under the facts of the case the local trial court would be able to distinguish Pickering, and it's also possible that the case would be appealed with the First Judicial Department rejecting the reasoning of Pickering. It is also foolish for any landlord to ignore the fact that a tenant is not paying rent, rather than seeking eviction of the tenant as soon as nonpayment becomes an issue, although any landlord who wants to evict a tenant from an illegal apartment would be wise to be working through an attorney.

  5. #5

    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    Quote Quoting jk
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    without getting too deep into this tonight, here are a couple thoughts:





    I think you are confusing a situation where the room cannot legally be considered an apartment and one where there is no permit issued by the municipality to show it was registered as an apartment.

    they are different situations and courts can make opposing rulings due to the different facts involved.



    in one issue, contract law is all that is required to determine whether rent is due. For a basement to be legally considered a sleeping room there must be certain requirements met. If those are not met, the room cannot be used as a sleeping room hence any contract that holds it out as an apartment is unenforceable due to the fact it is illegal to rent out the room as a sleeping room. As such, the courts will not assist in recovering money owed based on an illegal activity. the legality, or illegality, exists between the tenant and the landlord. clean hands doctrine would prevent a court from demanding said tenant pay rent owed per the contract.


    in the other where a room legally eligible to be used as an apartment although without proper permitting, a court could surely rule the rent is collectible as the only damage is to the government. The relationship between the landlord and tenant is in itself not illegal. The legality lies between the landlord and the municipality and that in itself is not cause to necessarily refuse to require the tenant to pay


    what other state's standards are is irrelevant. NY standards are the only thing to consider.

    btw: I don't know of a state in the country that does not require a basement, that is used as a sleeping room, to have at least two means of egress. That alone is often the cause a basement is not legally able to be used as a sleeping room.


    first, I would caution you about learning from JJ. I have seen too many rulings of hers that have no basis in law. After all, her show is simply intended to be entertainment and little else.


    secondly, using that same argument, if I rented out my kid as a hooker that too would be enforceable if the John refused to pay.

    It is not illegal to sell a customer a steak they may not like how it was prepared. It is illegal to rent a room that cannot legally qualify as an apartment.
    I would appreciate the answer to my main question rather then picking apart each statement.


    1. No confusion. Lawyers and the courts in NYC are pretty much saying no COA = no back rent for a basement. Simple as that. I am not confusing this with a room mate agreement.

    2. I was comparing other states standards to mean it can still be safe. A lot of people are under the impression a basement is not safe. Illegal does not mean unsafe. My basement has two ways out, a sprinkler system and large windows. Just because it is 50% below ground it is a cellar and illegal. I don't think if I ever rented it I should be barred from rent and the appellate court agrees. This will change as he government is trying to pave the way with the term "micro apartments."

    3. I know JJ is just a show but her quote makes sense. If you don't like something leave. If you feel something is unsafe you shouldn't be stalling the courts to live in an unsafe environment. Even to the extreme example you made, yes he should pay. You gave your word honor it. A lawsuit would be heaven to the street justice you will get for stiffing the wrong person. But morals vs mores vs law is for another time.

    Please read the entire case. It started as small claims but was awarded back rent.

    The Appellate Term held that contrary to the small claims court’s ruling, “there is no bar to the recovery of rent when a dwelling that has a certificate of occupancy as a one-family dwelling contains an illegal apartment. It is only in the Multiple Dwelling Law that the Legislature has seen fit to impose a forfeiture of rent as a penalty.” The Multiple Dwelling Law is a statutory body that applies to buildings occupied as a residence by three or more families living independently of each other (see Multiple Dwelling Law § 4 [7]).

    In this appeal, while there was proof that the one-family house contained an illegal apartment, there was no proof that it constituted a multiple dwelling. In other words, there were less than three families living there and hence no violation that would trigger the forfeiture provisions of the Multiple Dwelling Law. The Appellate Term held that the Chappes were not precluded from recovering rent for the months in which Pickering resided in the apartment and that the Chappes were entitled to retain the security deposit as a setoff against the rents owed. The judgment of the small claims court was reversed. The Appellate Term further made clear in its opinion that even the absence of a certificate of occupancy does not bar a landlord from recovering rent in a non-payment action, provided that there are less than three families living in the premises.

    As a result of the decision in Pickering v Chappe, supra, there is no longer any disparity or misunderstanding of the relationship between the legality of the premises to the collection of rent, and the impact of town ordinances on landlord-tenant proceedings. From time-to-time you will still see an inexperienced lawyer or pro se litigant attempt to raise the defense that the non-payment action must be dismissed because the apartment is illegal; those lawyers and parties generally get a rude awaking to the new state of the law.http://www.longislandevictionslawyer...rtment-nassau/

    So all I am saying is in Nassau and Suffolk this ruling is holding up and lawyers are educating their clients. Why is this case not holding up in NYC?

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    Quote Quoting Mr. Knowitall
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    The Acquino notes that "The mortgage entered into by the defendant to fund the purchase of the property recites that it is 'improved by a 1 or 2 family dwelling'", and also notes that "There is no showing whether the apartment was in a cellar or a basement under Multiple Dwelling Law § 4 (37) and (38), respectively." The court found that in the context of that lawsuit, it didn't matter:

    The court found that a rental agreement could not be enforced through the courts, whether or not the house was a MDU: If the house was a MDU, the collection of rent would be barred by statute; if not, the collection of rent would be barred by the fact that the rental agreement was an unlawful contract that the courts would not enforce. The court also found that although the unit was unlawful, the tenant was not entitled to recover from the landlord the rent she had paid to reside in the unit. Her recovery was for the amount of the security deposit and her moving costs, incurred after the apartment was declared unlawful. Pickering largely accords with Acquino, as although it finds rent enforceable during the period in which the tenant is in residence, the tenant is free to end the tenancy at any time based upon the illegality of the unit with no further obligation to the landlord.

    Acquino did not involve an attempt to recover rent from the former tenant, as opposed to an effort to keep the security deposit, and the biggest difference between Acquino and Pickering is that the Acquino court found that the landlord of an illegal unit had no right to keep any portion of the security deposit while the Pickering court found no such constraint. However, unlike in Pickering where the security deposit was applied to rent, the landlord in the Acquino court was attempting to keep the lion's share of the security deposit over allegations of damage to the unit, and the Acquino court noted also that the landlord had presented no evidence of damage. Also, although the Acquino court implies that it might not enforce rent owed to the landlord for a period prior to the tenant's vacating the unlawful unit, that issue was not before the court.

    It would be foolish for a landlord to rent an illegal unit in NYC in defiance of Acquino, as it's quite possible that under the facts of the case the local trial court would be able to distinguish Pickering, and it's also possible that the case would be appealed with the First Judicial Department rejecting the reasoning of Pickering. It is also foolish for any landlord to ignore the fact that a tenant is not paying rent, rather than seeking eviction of the tenant as soon as nonpayment becomes an issue, although any landlord who wants to evict a tenant from an illegal apartment would be wise to be working through an attorney.
    You must not be from New York. If you did you would know how slow the housing courts are and a person can stall for about seven months before being evicted.

    Contrary to your belief, a study showed that their is about 144,000 illegal apartments in NYC alone. There is also talk, due to rising rents and the population about rethinking the strict laws on basements. So people are doing it contrary to Acquino.

    I am not sure what you are trying to say in all the other paragraphs but the last. I am familiar with both cases and my points are:

    1. The court in the same case stated above that " there is no statute prohibiting the collection of rent from an illegal one or two family dwelling."

    2. The Appellate Term held that contrary to the small claims court’s ruling, “there is no bar to the recovery of rent when a dwelling that has a certificate of occupancy as a one-family dwelling contains an illegal apartment. In NYC almost every landlord knows a contract is almost useless as far as longevity and they are month to month. I am strictly speaking of back rent during the eviction process.

    3. This is the most important and what my question is about. How would a trial court be able to distinguish Pickering when the court clearly states "The Appellate Term held that the Chappes were not precluded from recovering rent for the months in which Pickering resided in the apartment and that the Chappes were entitled to retain the security deposit as a setoff against the rents owed."

    I am not arguing that it can be appealed. It can be appealed to the First Judicial or for my area Queens County the jurisdiction of the Appellate Term 2nd Dept. for the 2nd and 11th and 13th Judicial Districts That is the legal system. It can go either way.

    That is the whole point to this question. I know for a fact this ruling is holding up in Nassau and Suffolk County but why not NYC when under vertical stare decisis, a trial court must adhere to a ruling of any NY appellate court regardless of the division, unless their own or another division has ruled differently.

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    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    You can wnt anything. I specifically stated I was tossing out a few thoughts on the matter and nothing more as it was late and was not going to delve deeply into the issue.

    Then, undrstand that an appellate court does in fact "pick apart" a prior courts ruling. They determine the validity of the question before them by picking it apart and testing it against standing law. They also review other issues within the ruling before them so as to be able to determine if the case in whole is even comparable to case law presented as a defense to either parties position

    since you obviously expect a person responding to do exactly and only what you believe is proper I'll leave this to anybody else that wants to put up with your crap.

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    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    Quote Quoting OCDresearcher
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    Lawyers and the courts in NYC are pretty much saying no COA = no back rent for a basement.
    If that's what the NYC courts are holding, that's what NYC landlords can expect when they get to court. Landlords are free to appeal if they think they can do better.
    Quote Quoting OCDresearcher
    From time-to-time you will still see an inexperienced lawyer or pro se litigant attempt to raise the defense that the non-payment action must be dismissed because the apartment is illegal; those lawyers and parties generally get a rude awaking to the new state of the law.
    There is a difference between finding that the MDU rent forfeiture provision is inapplicable to dwellings that do not fall under the MDU law, and a finding that a lease for an illegal apartment is an illegal contract that cannot be enforced through the courts. The fact that a court may rule one way when a particular issue or defense is not raised by the parties does not of itself mean that other courts are bound to follow its decision when the issues or defenses are raised.
    Quote Quoting OCDresearcher
    Contrary to your belief, a study showed that their is about 144,000 illegal apartments in NYC alone.
    You do not need to be rude. The fact that a lot of people do something that is foolish does not serve as evidence that it's not foolish.
    Quote Quoting OCDresearcher
    I am not sure what you are trying to say in all the other paragraphs but the last.
    That's a pretty basic discussion of the case law. What part are you having difficulty understanding?

  8. #8

    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    Quote Quoting jk
    View Post
    You can wnt anything. I specifically stated I was tossing out a few thoughts on the matter and nothing more as it was late and was not going to delve deeply into the issue.

    Then, undrstand that an appellate court does in fact "pick apart" a prior courts ruling. They determine the validity of the question before them by picking it apart and testing it against standing law. They also review other issues within the ruling before them so as to be able to determine if the case in whole is even comparable to case law presented as a defense to either parties position

    since you obviously expect a person responding to do exactly and only what you believe is proper I'll leave this to anybody else that wants to put up with your crap.
    I did not mean to be rude but online forum posters are notorious for picking apart statements rather than answer the question as a whole. I would like my answers to be clear and concise, so when someone reads this it would be informative rather than lead to more questions.

    Your post sounded condescending when you kept taking comparisons and similes out of context.

    I actually enjoyed that case because IMO it is a step in the right direction. I know you can name exceptions but I believe that within human reason, a contract should be enforceable contrary to law. If a simple contract is made where both parties understand the risks, then I do not see why not. If I am an eskimo and don't want heat, then so be it, I am satisfied.

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    Quote Quoting Mr. Knowitall
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    If that's what the NYC courts are holding, that's what NYC landlords can expect when they get to court. Landlords are free to appeal if they think they can do better.

    There is a difference between finding that the MDU rent forfeiture provision is inapplicable to dwellings that do not fall under the MDU law, and a finding that a lease for an illegal apartment is an illegal contract that cannot be enforced through the courts. The fact that a court may rule one way when a particular issue or defense is not raised by the parties does not of itself mean that other courts are bound to follow its decision when the issues or defenses are raised.

    You do not need to be rude. The fact that a lot of people do something that is foolish does not serve as evidence that it's not foolish.

    That's a pretty basic discussion of the case law. What part are you having difficulty understanding?
    Sorry, I did not mean to be rude but around here it is a widely accepted practice. It is similar to getting cited for jaywalking and is not looked upon unless other problems arise.

    I was also confused why you were providing a summary when I am familiar with the case itself.

    Maybe I was not being clear and concise:

    I know for a fact in Nassau and Suffolk County, back rent is being rewarded based on this case. The courts were split but now seem to be unified once this judgment was made. Doesn't that prove this ruling is binding? If it is binding for those counties, it must also be binding for NYC unless it is appealed in NYC under stare decisis. Could it be the NYC judges are unfamiliar with this case and plaintiffs are not citing it? I know judges are overworked.

    In response to your second paragraph: The court awarded a judgment based on their written opinion which makes it common law does it not? They only awarded the deposit because that was the amount of back rent owed. They would have awarded more if tenant owed more. I know this case doesn't make any other provision of a lease valid and strictly addresses rent issues. I have never heard of signing a lease for a basement from landlords I know.

    So all I am saying is why are all lawyers saying "you can't collect back rent in NYC" and not encouraging them based on case law to proceed? Small claims court is hardly expensive and very informal. At worst by your standards this gives them an edge in the courtroom and citing current Nassau & Suffolk trial court ruling will further their arsenal for the judge.

    I am just trying to make sense of how lawyers that specialize in LT law would not advise and supply them with this information. If you are going to housing court anyway for an eviction, why brush up on a few hours of caselaw and go for the rent too.

    Is it that LT lawyers only focus on the big cases and do not stay up to date on simple small claims matters? Or is it the size of your wallet equals the size of your advice? If you look up patent caselaw with the big boys, the word "you won't win" is not in their vocabulary.

  9. #9
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    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    If you have an actual case that you want to litigate in NYC, and are willing to appeal in the event of an adverse ruling, you will find lawyers who are willing to represent you. If you aren't willing to invest that type of time, energy and money, and are going to live with your result from the trial court, you are going to instead hear what you are likely to experience in court if you do not appeal.

  10. #10

    Default Re: Can a Landlord Collect Rent for an Illegal Apartment in a One- or Two-Family Dwel

    Quote Quoting Mr. Knowitall
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    If you have an actual case that you want to litigate in NYC, and are willing to appeal in the event of an adverse ruling, you will find lawyers who are willing to represent you. If you aren't willing to invest that type of time, energy and money, and are going to live with your result from the trial court, you are going to instead hear what you are likely to experience in court if you do not appeal.
    Unfortunately I don't, well I guess fortunately because nobody owes me money.

    I just was curious if my defense was ever raised in a trial court or nobody ever bothered. Some lawyers are good at what they do some aren't, so I wanted to see if:

    1. My defense was attempted and failed.
    2. There was actual appellate case law I could not find in NYC
    3. LT lawyers have more important cases and don't follow the small money, making me possibly right
    4. The information on the lawyer’s website is outdated.

    Alas, I can't test it as in US courts you can't appeal without being directly involved. I noticed that $$ brings much more creative defenses (see patent cases).

    I actually asked a question years back where most lawyers dodged the question and now it is used today. I was asking about utilizing information subpoenas for blatant debtors that tried to manipulate the system to throw them in jail. If they lied (using public record to confirm) or did not respond to the information subpoena, the court can issue a body attachment (arrest warrant issued).

    I was told that courts would not issue warrants for such small civil amounts and so on. But now collectors utilize it for debts of $50. Actually it is used even worse in other states as information subpoenas requires a appearance unlike in NY and doesn't limit how many you can serve.

    Go figure.

    If anyone is reading this in NYC and wants to try it, I would love to hear the results.

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