In order for a landlord to evict a tenant, they must go through the appropriate court process. This process is known as a “summary eviction proceeding.” In this section, you will find information regarding the general process a landlord must go through to evict a tenant.
If you receive any eviction papers, it is very important to contact an attorney as soon as possible. If you live in Tompkins County, you can contact LawNY by calling 607-273-3667 or the Tenants Legal Hotline by calling (607) 301-1560.
Generally, there are two kinds of eviction proceedings commonly used to remove a tenant or lawful occupant from their home: (1) “nonpayment” proceedings and (2) “holdover” proceedings. Please refer to New York Real Property Actions and Proceedings Law Section 711.
If your landlord brings a nonpayment proceeding, it means they are trying to evict you for unpaid or past due rent.
A landlord may start a holdover proceeding if you choose to stay in your home after your lease ends or after the landlord terminates your lease for a violation.
Additionally, a landlord may bring a “nuisance” holdover proceeding to evict a tenant if a tenant engages in persistent and egregious conduct that threatens the health, safety, or comfort of neighboring tenants. The important thing to note is that the behavior must be continuous – unless the conduct is especially egregious, it is not sufficient if something occurs once or twice. A few limited examples of continuous and egregious behavior that rise to the level of nuisance are: continuously causing a dangerous situation which threatens the safety or welfare of other tenants; continuously creating loud noise or music that disturbs or annoys other tenants; continuously threatening or harassing the other tenants, causing them to be fearful; or continuously refusing access to the landlord to make repairs. The landlord may, but does not have to, give the tenant an opportunity to stop or fix the behavior by providing the tenant with a written notice specifically describing the egregious behavior, before bringing an eviction lawsuit against the tenant. The landlord is required to provide the tenant with a preliminary notice of the eviction before going forward with an eviction proceeding. Importantly, the landlord must provide evidence proving that the tenant’s behavior meets this standard during the eviction proceeding.
The “petitioner” is the person who starts the court case. This is often the landlord, property owner, or property manager. The “respondent” is the person being sued. This is generally the tenant, a sub-tenant, or a guest of a tenant.
If your landlord has not received your rent payment within 5 days of when it was due, a landlord must provide you with a written notice by certified mail. This means that if your rent is due on the 1st of the month, the landlord should not provide the 5-day notice until the 7th. If a landlord tries to evict you without providing this notice properly, you can tell the judge and ask that the case be dismissed. Please refer to New York Real Property Law Section 235-e.
If you do not pay your rent, a landlord will likely give you a rent demand commonly known as a “14-day notice.” A rent demand is a written statement that asks a tenant to pay any unpaid rent or to move out. If you do not pay your rent or move out within 14 days after the demand, a landlord can start the eviction proceeding in court.
A rent demand must be written, and should not be served until at least six days after the day rent is due. If your landlord serves the 14-day notice too early, or if your landlord files the eviction in court before the 14 days have passed, you should tell the court and ask the judge to dismiss the case. Please refer to New York Real Property Actions and Proceedings Law Section 711.
After filing for eviction with the court, the landlord must serve the tenant with two documents: (1) the “notice of petition” and (2) the “petition.”
The notice of petition is a document that tells you who is suing you, and when and where the court hearing will be held. The notice of petition should also describe what may happen if you do not appear in court (such as the possible entry of a default judgment in favor of the landlord) or raise any potential defenses. Further, a notice of petition can only be signed by a judge, court clerk, or an attorney. Please refer to New York Real Property Actions and Proceedings Law Section 731.
The petition is a document that outlines your landlord’s reason for filing an eviction and what they would like the court to do about it. This should include:
The name of the person who filed the lawsuit and their relationship to the property at issue;
The name of all people being sued and their relationships to the property;
The address of the property;
The amount of unpaid rent, listed by each month rent was unpaid; and
The total amount of money the petitioner is asking the court to award them, and whether they are asking the judge to sign a warrant of eviction.
Please refer to New York Real Property Actions and Proceedings Law Section 741.
Both the Notice of Petition and the Petition must both be served on the tenant at least 10 days, and not more than 17 days, before the eviction court hearing. Please refer to New York Real Property Actions and Proceedings Law Section 733.
It is important that the tenant is served properly. If the tenant was not served properly, it is important to document the date, time, and circumstance of the service, if any service was made, or document that service was not effectuated. Improper service can be raised as a defense. In New York, there are several ways to properly serve someone:
Personal Service: This is when a tenant will be personally delivered the papers by someone who is over the age of 18 and not a party to the case [it is important to note that the landlord cannot be the one to deliver the papers since they are a party to the case].
Substituted Service: This is when someone who is present at or lives in the tenant’s home is given the papers by someone who is over the age of 18 and not a party to the case, and the papers are also mailed to the tenant at their residence by first class mail. The envelope in which the papers are mailed must be marked “PERSONAL AND CONFIDENTIAL”, but should not indicate that it concerns a legal action. The physical delivery of the papers and the mailing must occur within 20 days of each other.
Serving an Agent: The papers may be delivered to a designated agent of the tenant. Please refer CPLR §318 for more information.
Nail and Mail: If the tenant was unable to be served according to Method 1 (Personal Service) or Method 2 (Substituted Service) after repeated, genuine attempts to do so, the papers may be served by attaching the papers to the door of the tenant’s residence and mailing the papers to the tenant at their residence by first class mail. The attaching of the papers to the residence and the mailing must occur within 20 days of each other. As described in Method 2 (Substituted Service), the envelope in which the papers are mailed must be marked “PERSONAL AND CONFIDENTIAL”, but should not indicate that it concerns a legal action.
Other Methods: The court may also deem other methods of service proper if Method 1, 2, and 4 above are not practical.
Please refer to New York Real Property Actions and Proceedings Law Section 733.
A predicate notice is generally a written notification a landlord is required to give a tenant prior to beginning eviction proceedings against the tenant.
In a holdover proceeding, your landlord is trying to evict you because you have stayed in your home after your lease has ended. This can generally happen two ways; your landlord may refuse to renew your lease, or your landlord may claim that you violated your lease. Please refer to New York Real Property Actions and Proceedings Law Section 711.
If your landlord is trying to evict you after not renewing your lease, they must first give you notice that they are not going to renew your lease. Depending on how long you have lived in the home, or how long your lease is, you landlord must give you notice a certain amount of days ahead of time, see below:
Occupancy or lease of less than 1 year: 30 days
Occupancy or lease between 1 and 2 years: 60 days
Occupancy or lease of more than 2 years: 90 days
If your landlord does not give you the required amount of notice, then that would be a defense you could tell the judge in court. Please refer to New York Real Property Law Section 226-c.
If your landlord is claiming that your lease ended because you violated your lease, then your landlord may have to give you a certain amount of notice and a chance to fix the violation. Whether they have to give you any notice or a chance to fix the violation will depend on your lease.
Just like in a nonpayment proceeding, the notice of petition in a holdover proceeding should tell you who is suing you, when and where the court hearing will be held, and what may happen if you fail to show up or raise defenses.
Similar to a nonpayment proceeding, a petition in a holdover proceeding should include information about who is bringing the proceeding, who they are suing, and everyone’s relationship to the property. A petition in a holdover proceeding should also include the dates the rental agreement started and ended. If the lease was terminated by the landlord because of a lease violation, the petition should say what part of the lease the tenant violated and how they violated it.
If you do not come to court on the date listed on the notice of petition, a default judgment may be entered against you. A default judgment may mean that you will automatically lose your case, even if you have defenses or counterclaims.
If you are unable to make it to your court appearance as scheduled, you can make a written request to the court to reschedule the court date. Be sure to include your contact information, so the court can respond to your request. Please refer to this Tompkins County page for court contact information. After submitting the written request, call the Court to follow up and request a written confirmation of the rescheduled hearing.
At or before the hearing, you can tell the court about any defenses you may have. A tenant can also tell the court that the landlord did something wrong, like violating the lease or a law. If the tenant is asking the court for money or other relief because of something the landlord has done, then that is called a “counterclaim.” If you make any counterclaims against your landlord, it is your responsibility to prove what happened and to convince the court that they should do something about it.
On the day of your hearing, you can request ONE 14-day postponement, called an “adjournment.” Courts generally grant the first request for an adjournment, by either party. You can use an adjournment to find an attorney, ask witnesses to appear, gather your evidence, and prepare your arguments. You can request further adjournments if you need them, but the court can decide whether or not to grant your requests. Please refer to New York Real Property Actions and Proceedings Law Section 745.
If you receive any eviction papers, it is very important to contact an attorney as soon as possible. You can contact LawNY by calling 607-273-3667 or the Tenants Legal Hotline by calling (607) 301-1560.
After any hearings or trial in your proceeding, if the court agrees with your landlord, the judge can sign a “warrant of eviction.” If you have a good reason, you can ask the court to postpone, or “stay,” the eviction, or “execution of the warrant.” However, a court may require you to pay rent for the amount of time you are asking for the eviction to be postponed.
To have the warrant executed, your landlord will need to give a copy of the signed warrant to the appropriate law enforcement officer. The law enforcement officer must then give you 14-days notice before they can try to remove you from your home. A law enforcement officer may only execute the warrant on a business day between sunrise and sunset.
A warrant of eviction can only be executed against those who are “named in the proceeding.” This means that if your landlord sues your roommate, but never names you in the petition, then you cannot be evicted – even if your roommate can be. This is a relatively new law and eviction warrants often contain language that make law enforcement officers believe they can evict everyone who lives at the property, whether they were named in the proceeding or not. If this happens to you, explain to the officer that you have not been named in the proceeding and you cannot be evicted without the landlord going to court to evict you, specifically.
Please refer to New York Real Property Actions and Proceedings Law Section 749 regarding warrants of eviction, as well as Section 751, Section 753, Section 755, and Section 756 regarding stays.
If a warrant of eviction will be executed against you and you will not be leaving your home beforehand, consider contacting the Ithaca Tenants Union to discuss your options. Please be aware, however, that if you attempt to stay in your home after a law enforcement officer executes a warrant of eviction, you may be charged with trespassing or face other legal consequences.
In addition to the warrant of eviction, the judge may order you to pay money to your landlord. This is called a “judgment.” Your landlord will have to “record” the judgment with the county clerk, and a law enforcement officer will have to try to collect the money from you.
As part of the New York State budget for 2021-2022, the State created the COVID-19 Emergency Rental Assistance Program (ERAP). ERAP uses federal funding to provide assistance for up to 12 months of back rent and utilities. If a tenant is approved for ERAP, the money is paid directly to the landlord. Importantly, ERAP provides some strong protections against eviction. First, neither a nonpayment nor a holdover eviction can be filed against a tenant who has applied for ERAP, until a decision is made on the tenant’s application. And if an eviction case has already been started, and the tenant applies for ERAP, the case must be stayed (put on hold) pending an eligibility determination.
Tenants have protection against eviction even if the landlord does not cooperate and agree to accept ERAP money. The ERAP program must make an effort to get the landlord to cooperate. If the landlord will not cooperate but the tenant is otherwise eligible for ERAP, the money is set aside for 180 days, giving the landlord time to change course and agree to accept the funds. It appears that the eviction stay (hold) continues in effect during these 180 days, and this should persuade the landlord to cooperate. The ERAP law also gives the tenant a legal defense against eviction for nonpayment of rent that would be covered by the ERAP payment. This defense should also motivate landlords to cooperate, especially since it exists for a year from when the tenant is found eligible for ERAP. Ultimately, if the landlord has not accepted the ERAP payment within a year of the determination, the law says the landlord has waived the amount of rent that would have been covered by ERAP, and cannot evict based on that rent either. The law does not say whether a landlord can refuse to accept ERAP funds for an eligible tenant and still go ahead with a holdover (“no cause”) eviction. However, allowing this would obviously go against the purpose of the ERAP program—keeping as many tenants in their homes while making their landlords whole. It should also be noted that a landlord’s refusal to accept ERAP funds may constitute illegal discrimination under New York human rights law because this money is considered a “lawful source of income.”
There are also strong protections in the law for tenants whose landlords cooperate and receive ERAP money. By accepting the money, the landlord agrees that the back rent covered by ERAP is satisfied, so it cannot be used for a nonpayment eviction. The landlord also must waive any late fees due on the back rent covered by ERAP. And the landlord cannot raise the rent for at least a year after the ERAP money is received. Also, the landlord cannot pursue a holdover eviction for one year after the ERAP payment is received, with one small exception. However, the ERAP law does say that tenants can still be evicted if they intentionally cause “significant damage to the property” or “persistently and unreasonably” engage in behavior that “substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others.”
This guide is a living document, and may be subject to change. It contains general information on your rights as a tenant in upstate New York, and is not a replacement for legal advice from an attorney. To get specific legal advice or representation in court, Tompkins County residents can speak to the Tenants Legal Hotline at (607) 301-1560 or visit https://ithacatenantresources.org/tlh or contact Legal Assistance of Western New York (LawNY) at 607-273-3667.
