The New York eviction process has two types of cases that landlords may bring against tenants. One is for the most common type of eviction, which is nonpayment of rent; and the other is for all other eviction reasons, such as holdovers or for violating a provision of the lease.
It is illegal to self-evict or lockout a tenant, which means taking action to expel a tenant without a court order. Many of these measures can be subtle such as blocking access to the tenant’s reserved parking spot, raising the rent in violation of the lease or by removing the tenant’s personal belongings. More obvious examples are threats of force, changing the locks and shutting off utilities. A tenant should contact local law enforcement if any of these actions occur.
A landlord who is found in violation of the New York’s lockout law may be liable for three times the damages suffered by the tenant.
The first kind of New York Eviction Notice is called a “Demand for Rent.” A 3-Day Demand for Rent is required under the New York eviction process in cases of nonpayment of rent. The notice must state the amount of rent owed and that the landlord will file a Petition for Eviction if the rent is not paid within the 3-day period.
A 30-day New York eviction notice must be served for all other evictions, including violations of the lease, refusing to leave after the lease has expired, for creating a nuisance or for participating in criminal behavior on the premises. The 30-days must be one full rental term, meaning the notice needs to be served before the first of the month.
A landlord does not have to allow the tenant to comply with the lease provision that has been violated, but the violation must have been substantial.
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Petition and Notice of Petition
The next step in the New York eviction process if the tenant fails to leave, pay the overdue rent or comply with the lease provision allegedly violated, is for the landlord to file a Petition from the Housing section of the civil court for the jurisdiction where the property is located. The Petition sets forth the reason for the eviction and the Notice of Petition that is issued by the clerk has the date, time and location of the hearing.
Service of Petition and Notice of Petition
The Petition and Notice of Petition may be served in any of the following three ways:
- Personal service. Anyone other than the landlord can personally serve the tenant. If the landlord is also requesting money damages, the tenant must be personally served.
- Substituted service. If the tenant is not available, the Petition can be left with a person of suitable age and discretion who also resides in the unit. The server must also immediately mail 2 copies of the Petition and Notice of Petition–one by regular mail and one by registered mail.
- Posting or Conspicuous Location. If no one is present after two attempts are made, one during working hours and one during evening or off hours, the server may attach or post the documents to the unit door or by sliding them under the door.
In any of these service methods, the server must sign an affidavit before a notary public regarding the method of service.
If the tenant fails to appear, the judge will declare a default judgment and give the tenant 5 days to vacate the premises. Otherwise, the landlord must prove that the tenant did not pay the rent when due or committed a substantial violation of the lease by offering documentary evidence, testimonial evidence, if necessary, along with copies of the lease, notice served, Petition and Notice of Petition, affidavit of service, rent receipts, photographs, repair estimates, or any other evidence in support of his or allegations.
The tenant may also present evidence of any defenses or to rebut the landlord’s allegations.
If the landlord prevails in a nonpayment of rent case, the tenant is given 5 days to pay the overdue rent and other costs incurred by the landlord. In other cases, the judge may allow the tenant a limited time to cure the lease violation.
A tenant in the New York eviction process has any number of defenses available, including the following:
- The allegations are not substantial enough to warrant an eviction.
- The allegations are false.
- There was improper service.
- The notice does not specify a reason for eviction.
- The landlord waived eviction by accepting rent.
- The eviction is in retaliation for the tenant having filed a complaint regarding the condition of the property.
- The eviction is based on the tenant’s religion, race, sex, national origin, creed, sexual orientation, age, marital or family status, or disability.
Warrant of Eviction
Should the tenant fail to pay the rent within 5 days of the court order, vacate or comply with the lease, if applicable, the landlord must obtain a Warrant of Eviction directing the City Marshall or other law enforcement official to evict the tenant. The City Marshall must serve a Marshall’s Notice, which gives the tenant 72-hours to vacate or he or she will be forcibly removed.
The Warrant must be served in the same manner as the Petition and Notice of Petition with additional days to vacate if it is served on a weekend or holiday. An eviction cannot take place on a weekend or legal holiday.
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