How to commence a summary eviction proceeding in New York City for nonpayment of rent. This guide is for residential tenancies, and does not address any particular type of tenancy (e.g. rent regulated or section 8).
Consider hiring an attorney
While you may think that a landlord-tenant case is simple and easy, there are a number of legal requirements that you must meet in order to successfully bring and maintain a nonpayment proceeding in housing court, and your failure to do even one of these things correctly may result in the termination of your suit, requiring you to start from the beginning again and losing precious time. Furthermore, depending on the type of tenancy (e.g. rent regulated, section 8), there may be additional rules you are required to follow. An attorney who normally practices in this area will be able to navigate all the rules and advice you best with respect to your own property. Please note that this guide is not a substitute for real, on point legal advice.
The Rent Demand - Form and Content
The law requires a demand for rent be made upon the tenant, specifying which amounts are due and for which months, and giving the tenant at least three days to pay pursuant to the demand. This demand may be oral or written. However, depending on what the lease provides with respect to notices, if your lease provides that all notices must be in writing, then you will have to serve a written rent demand. The rent demand must state, at the very least, the total amount owed in rent (and specify the amount owed for each month due), and must inform the tenant that they must pay in at least three days or give up the apartment. If the lease provides that additional notice must be given (i.e. 5 days, 10 days), then the lease controls and the notice must give at least the amount of time specified in the lease, rather than the statutory three days. Finally, the demand must be signed by the landlord. I usually recommenced that the rent be demanded in writing, rather than orally, as I find that it is easier to prove that a written demand was served as opposed to proving that the landlord orally demanded the rent from the tenant. Furthermore, a form for the rent demand can be purchased from a legal stationary online store such as Blumberg.
The Rent Demand - Service
If the Rent Demand is written, then there are only three ways it can be served, pursuant to law. If it is not served in the following three manners, then service of the rent demand is improper and may lead to dismissal of your court case. The rent demand can be served personally on the tenant(s); this is called personal service, and if completed in this manner nothing else needs to be done. The rent demand may also be served on someone who lives or works in the apartment who is not the tenant but is of a suitable age or discretion. If service is completed in this manner, then by the next business day (excluding certain holidays) the rent demand must also be served by regular and by certified or registered mail to the tenant(s) at the apartment. Thirdly, the rent demand can be served by conspicuous service. This means that the person serving the rent demand has made at least two attempts to complete personal service on the tenant (these attempts must be at different times of the day, usually one time during working hours and one time during hours when people don't work), and if that person cannot complete personal service despite his attempts, then a copy of the rent demand must be taped to the door or put under the door. By the next weekday (excluding certain holidays), the rent demand must also be served by regular mail and by certified or registered mail to the tenant(s) at the apartment. The person serving the rent demand must be over the age of 18 and must not be the landlord. In my practice, I recommenced utilizing a licensed process server because: (1) there is no limit as to how many times a licensed process server may serve a particular notice; (2) a licensed process server knows all the rules on how to serve a rent demand or petition/notice of petition properly; and, most importantly; (3) there is a legal presumption that service was effectuated properly when there is an affidavit of service from a licensed process server, and the tenant must successfully rebut that presumption in order to successfully contest service.
Commencement of the Proceeding - The Notice of Petition and Petition Generally
Once the Rent Demand expires and the tenant has not paid or left the apartment, then the next step will be to commence a proceeding in housing court. The way to do this is by filing a Notice of Petition and a Petition. The Notice of Petition provides notice to the tenant that a case has been commenced against them for nonpayment of rent and advises them how they are required to answer the case or risk entry of a default judgment and warrant against them. The Petition provides the basis of the proceeding against the tenant, and must contain: (1) The relationship between the Petitioner(Landlord) and the property sought to be recovered; (2) the relationship between the Respondent(Tenant) and the property sought to be recovered and his relationship with the Petitioner; (3) A description of the property sought to be recovered; (4) The facts which form the basis of the case being brought (that rent is due, how much is owed, that a demand was served and the tenant failed to pay after the demand was served, and any other relevant facts); and (5) the relief sought. There are a number of other items that must be plead in the petition, such as the type of tenancy, and whether the premises is a multiple dwelling or not (if so, then the multiple dwelling registration must be plead properly). Forms for the Notice of Petition and Petition are available from legal stationary online stores for purchase.
Commencement of the Proceeding - Filing and Serving the Notice of Petition and Petition
Once the forms are all filled out properly, the Petitioner must then make copies of the Notice of Petition and Petition and bring the originals plus copies to the Landlord-Tenant Clerk's Office for filing. The Petitioner will have to purchase an index number (at the time of this guide, the filing fee is $45), for which payment may be made by cash, certified check, money order or attorney's check, payable to "Clerk of the Civil Court". The Clerk will stamp the index number on the original forms and will keep the Petition. The Clerk will return the Notice of Petition with the index number stamped on the front. The landlord must then serve the Notice of Petition and Petition (note that the original Notice of Petition now stamped by the Clerk must be copied as this is the form of the Notice of Petition that the tenant must receive; if the clerk's stamp is missing from the copy of the Notice of Petition the tenant receives, then the case may be open to dismissal. Once copies of the Petition and Notice of Petition are served as required by law, then the original Notice of Petition, along with affidavits of service proving that the court papers were served pursuant to law, must be filed back with the Clerk again. Stamped postcards must accompany this filing, so that the Court can mail them out to the Tenant to notify them as well. Note that the affidavits of service must be filed back with the Clerk within three days after service is completed, and any delay may render service defective. For more information on the requirements for service of the Petition and Notice of Petition, refer to the court's website here: http://www.nycourts.gov/courts/nyc/housing/servicenoticeofpetition.shtml
Tenant's Answer and First Court Date
You may have noticed that there is no court date in the Notice of Petition served on the Tenant. This is because the court date is not triggered until the Tenant comes to court, as provided in the Notice of Petition, and answers the Petition. The answer can be oral to the Clerk (who then marks down the Tenant's allegations in a form which is sent to the Landlord or his attorney) or can be in writing, but once the Tenant answers, the Clerk will notify both parties of the first court date. On this court date, both parties will appear, with or without attorneys, in what's called a Resolution Part. In this Part, the judge and the court staff attempt to mediate between the parties and see if an agreement can be reached. If no agreement can be reached, or if any side asks for a postponement (called an adjournment) either to seek an attorney or for any other reason, then the parties will have to come back on another day, eventually for trial or motion practice. Note that on the second application by the tenant for an adjournment, or thirty days after the petition was first noticed to be heard, the Petitioner may make an application to the Court for the tenant to pay current rent as it comes due to prevent the arrears from increasing monthly.
Once the Resolution Part determines that the case is ready for trial, the case will be transferred to Part X - this is basically an expeditor who sends the cases to trial parts as they open and become available. Once you are in front of a trial judge, the trial begins. By this point, if you have not done so already, you should reconsider hiring an attorney.
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