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Roommate Non-Payment - Non-Payment Action or Holdover Action

New York, NY |

At a free legal clinic at the BAR Association, I was advised to file a Non-Payment action against my roommate right away for non-payment of rent THIS current month. She refused to pay the rent, deciding to use her Security Deposit to cover it.
I'm confused - I read on an AVVO Attorney response - that I can't file a Non-Payment "Summary" action against a roommate. That I could file only a Holdover action. She won't be holdover until the 1st of next month - so I will lose time.
[I sent her a Termination Notice on 6/30 for 7/31. And she signed a document saying she'll vacate by 7/31.]
Is it only a "Summary Action" for Non-Payment that I can't file? Or can I not file a Non-Payment action against her at all?
And, do I file for eviction - or rent monies (Security does cover rent) ?

This is a rent-stabilized apartment. I am on the lease. Roommate is not. Roommate Agreement is between us - in writing. Term of residency was originally through 9/30/12.

Attorney Answers 1


Dear Roommate Nonpayment:
When the subject matter is eviction of a roommate, you may receive as many opinions from attorneys on the options available as the number of attorneys you ask. The difficult legal problem underlying all tenant and roommate disputes rests in the actual language utilized in the roommate agreement (did the agreement create a real landlord and tenant relations?, did the agreement create only a license arrangement? did the roommate agree to pay rent or agree to pay for the use and occupancy? did the agreement provide for up front and at end payments at the inception of the agreement or pay as you go ahead? what did the agreement allow the parties to do with the security deposit?) Each and every possible combination of terms in the agreement may spin off a variety of permutations and thus result in different opinions on procedure when a default occurs.
A nonpayment summary proceeding when successful for the landlord does not guarantee an eviction. A tenant may bail out (redeem) the tenancy before the issuance of the warrant of eviction by either paying the landlord the money judgment (that is the amount of the actual judgment for unpaid rent established by the landlord) and the court costs allowed by the court with the judgment. A tenant can save the tenancy by making a deposit of the judgment and the costs with the clerk of the court. See as provided in NY Real Property Actions and Proceedings Law Section 747-a:
§ 747-a. Judgments; stays. In the city of New York, in any non-payment summary proceeding in which the respondent has appeared and the petitioner has obtained a judgment pursuant to section seven hundred forty-seven of this article and more than five days has elapsed, the
court shall not grant a stay of the issuance or execution of any warrant of eviction nor stay the re-letting of the premises unless the respondent shall have either established to the satisfaction of the court by a sworn statement and documentary proof that the judgment
amount was paid to the petitioner prior to the execution of the warrant or the respondent has deposited the full amount of such judgment with the clerk of the court. ***
When you commence your holdover proceeding after July 31, 2012, you may add in a request for either unpaid past due rent (without need for making a rent demand or starting a nonpayment proceeding) and or unpaid or past due use and occupancy. When you prove your entitlement to a possessory judgment for the holding over after expiration of the term you will also prove how much money is owed to you, through the date of the judgment. You will have both a judgment for possession and a judgment for money. You cannot simultaneously maintain a nonpayment proceeding (where your verified petition claims the respondent is a tenant) and a holdover proceeding (where you claim the tenancy is over.) In any case, unless the tenant appears in court on the first date the case is in court (nonpayment or holdover) and consents to a judgment for possession and a judgment for money) the court process will likely delay your day for a judgment for a while. If you filed your petition today in the nonpayment proceeding, and served the notice of petition and petition today and gained personal service, and the roommate does not appear at the clerk's office to request a court date, and defaults in the nonpayment proceeding, you will still be well into the month of August 2012 or perhaps September 2012 before you receive your default judgment and your chosen city marshal is issued the warrant of eviction. if the roommate answers the petition and obtains a trial date, you would be further away from your date of judgment unless on the court date the roommate consents to the possessory and money judgment. And you may still need the city marshal to perform the eviction if the roommate does not move out.
Read more at:

The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.

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I would like to file something in July, as I want to ENCOURAGE her to move out by July 31, before she becomes a holdover. I don't think she has the money to pay anything. More importantly, I don't think she wants a judgment against her on record.

Steven Warren Smollens

Steven Warren Smollens


Good evening: Before you start your case review the procedure at NY Civil Court for prosecuting your own nonpayment case at: Good luck.

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