HOW TO EVICT IN NEW YORK CITY – NON-PAYMENT PROCEEDINGS

NON-PAYMENT PROCEEDINGS

A nonpayment case is brought by the landlord to collect unpaid rent. A tenant may be evicted for non-payment of rent.

The Demand for Rent

Before the case can be started, the landlord or someone working for the landlord, must demand the overdue rent from the tenant and warn the tenant that if the rent is not paid, the tenant can be evicted. The demand must be in writing and must be delivered to the tenant at least 14 days before the court case is started.

If you are a landlord with a one or two family house, or a building with fewer than five apartments, or own a coop or condo, the New York State Courts Access to Justice Program has a free DIY (Do-It-Yourself) computer program to help you make a written Rent Demand. Or you can contact an eviction attorney, eviction service or buy a Rent Demand form at a legal stationary store.

Starting the Case

If the tenant does not pay the rent after the demand is made, the landlord may file a nonpayment petition (sometimes called a “dispossess”) against the tenant in Housing Court. Landlords who do not have a lawyer, who own a one or two family house, or a building with fewer than five apartments, or own a coop or condo, can use the New York State Courts Access to Justice Program’s free and easy DIY (Do-It-Yourself) Form program to make a nonpayment petition that is ready to print, serve and file to start a case. This program is only for un-regulated housing. There is a fee to start the case.

Or, the landlord may use forms of his or her own, or may buy the following forms at a eviction service or legal stationary store: 

1. Petition 

2. Notice of Petition

3. Service copies 

4. Postcard

The nonpayment petition must contain: 

1. the interest of the petitioner in the premises; 

2. the interest of the respondent in the premises and his/her relationship with the petitioner;

3. a description of the premises;

4. the facts upon which the proceeding is based;

5. the relief sought.

The Rules of the Court also require a petitioner to plead whether the building is a multiple dwelling, and if so, that there is a currently effective registration statement on file with the office of code enforcement, the multiple dwelling registration number along with the name and address of the managing agent.

The landlord must fill out the forms (see Requirements for Nonpayment Petitions below) and make photocopies, then bring or hire a legal service  to file the forms to the Landlord-Tenant Clerk’s Office to the cashier’s window to buy an index number. Payment may be made by cash, certified check or money order. Make the money order or certified check payable to the “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 make sure the tenant receives a copy of the Notice of Petition and the Petition in the manner required by law. 

After serving the papers, by process server the landlord must bring back the original Notice of Petition with the notarized affidavit of service on the back filled out. In addition, the landlord must bring in the stamped postcard so that the court can mail it to the tenant. After the tenant answers, the court will mail a postcard to the landlord stating the date, time, and place of the court hearing.

If the tenant does not answer, and the rent is still not paid, the landlord can apply for a default judgment based on the tenant’s failure to answer.

Requirements for a Nonpayment Petition

1. The petition must be brought by a person who has a right to recover the property. This may be a landlord, a primary tenant, a roommate who holds a lease in his or her name, an estate, etc.

2. The respondent must be identified. This is done by providing the name of the respondent, although there might be unidentified under-tenants who are styled as John and/or Jane Does.

3. The nature of the agreement by which the respondent entered into the tenancy must be provided. This could be a lease or a month to month tenancy, and must have some specificity as to when it began.

4. The amount of rent to be collected as well as the day on which the rent is to be paid.

5. The location of the premises. The petition must be brought in the county where the building is located.

6. There must be a specific allegation as to the rent due. This normally requires that the amounts due for each rental period be specified. If any other money is due, say for taxes as “additional rent,” or for late or legal fees, these must be itemized separately and totaled.

7. There must be an allegation as to the rent demand, either that it was oral, or in writing. If in writing, the demand and an affidavit of service may be submitted to the court.

8. There must be an allegation that the respondent continues to occupy the premises. If the respondent has left the premises, a nonpayment proceeding may not be maintained.

9. There must be a statement that either the premises are not subject to rent regulation, and the reason; or, that the premises are subject to rent regulation, and the kind of rent regulation that applies.

10. The petition must specify whether the premises is a multiple dwelling or not. If it is, the name and address of the managing agent and the multiple dwelling registration must be supplied. See Finding the Multiple Dwelling Registration Information.

11. There must be a clause specifying the relief requested. This normally must state whether the premises is used by the respondent as a residence or not, the amount of money for which judgment is requested, and the interest date, if interest is sought, as well as a request that the judgment be granted and a warrant of eviction be issued.

12. The petition must be signed by the petitioner.

13. The petition must be verified. The verification may be made by different persons on behalf of the petitioner, or by the petitioner him or herself if a natural person. The verification must be affirmed or sworn to and notarized.

Going to Court

If you received a postcard from the court with a court date you must appear in the courtroom on that date. You can get Directions if you do not know how to get to the courthouse. Get there early, since you will need to go through a metal detector before entering the courthouse. You should bring all your evidence in support of your claim or defense. The first courtroom you go to is called a “Resolution Part.” To learn more about what happens there, refer to the Resolution Part. 

Answering a Case

If you have received a petition from the civil court, you must appear and answer within the time period provided for in the notice of petition. If you have received a postcard from the court indicating that papers have been filed asking the court to evict you from your residence, you must also answer. You should bring a copy of the court papers you received, or the postcard from the court, when you come to answer.

If you are an individual, you may answer either orally or in writing. Any individual named as respondent, or any person in possession or claiming possession of the premises, may submit an answer. Your answer should include any legal or equitable defense or explanation that you might have. 

You may also make a counterclaim in response to a petition at that time.

If you do not answer and appear, the party suing you may be able to enter a possessory judgment and/or a money judgment against you. The petitioner may be able to evict you, as well as garnish your wages or levy on your bank account. If you received a notice from a marshal or a sheriff you may be able to vacate your default and/or stop the eviction. You can learn more about this and other housing court procedures by reading our Legal and Procedural Information sections.

The time to answer the petition and the procedures for answering a nonpayment petition and a holdover petition differ and are set forth below. You should bring a copy of the court papers you received, or the postcard from the court, when you come to answer. The clerk will ask you to show some form of identification.

Answering a Nonpayment Petition

If you are served with a nonpayment petition you must answer within 10 days after you have received the notice of petition. To find out where to answer in your county, refer to Locations. The clerk will set a date for trial between 3 days and 8 days after you answer. You may answer orally or in writing.

To answer orally, you must come to Court and speak to a clerk at the counter who will check off a Landlord/Tenant Answer In Person form based upon what you tell him or her. You should tell the clerk if you are in the military or a dependent of someone in the military. The Answer in Person form contains a list of possible defenses that may or may not apply to you. After the clerk completes this form you will get a duplicate copy of it. Check to make sure that your answer was correctly recorded by the clerk before you leave the counter. If the answer is not correct, tell the clerk. Bring your copy of this form and all court papers to court on the hearing date.

View information on Answering a Notice of Petition And Petition (CIV-LT-92). To read more about the defenses listed on the Answer in Person form, go to the Housing Fact Sheets. If you live in a rent stabilized or NYCHA apartment, you can use the interactive Nonpayment Answer Program to learn about your defenses and help you prepare to answer a nonpayment petition in person. You can also watch a community seminar about Defenses to a Nonpayment Proceeding.

You may answer in writing by using a free Civil Court form, or your own form. You may come to the clerk’s office and request a Landlord/Tenant Answer In Writing And Verification form from the clerk at the counter. You will be given two duplicate copies of this form. You may also download the form now. You can download the Answer in Writing Instructions.

The procedure for a written answer is more complicated and if not done properly, your answer may be rejected. You must fill out the written answer form and then serve by process server on the other side. If you do not prepare your written answer in court, the procedure is slightly different. Go to Serving Your Written Answer for instructions on how to serve the answer correctly. Bring your copy of the answer and all court papers to court on the hearing date.

Answering a Holdover Petition

If you are served with a holdover petition, generally you must answer orally or in writing in the courtroom on the date of the hearing. However, if the petitioner serves the notice of petition at least 8 days prior to the return date, the notice of petition may ask you to answer at least 3 days before the hearing date. To find out where to answer in your county, go to Locations.

If you answer orally by coming to the court and speaking to a clerk at the counter, the clerk will indorse your answer on the court file. You should tell the clerk if you are in the military or a dependent of someone in the military. You may answer in writing by either downloading and completing the Landlord/Tenant Answer in Writing and Verification Form or coming to court and asking the clerk for a copy. There are also Instructions for how to complete the answer. You may also submit your own written answer. The procedure for a written answer is more complicated and if not done properly, your answer may be rejected. Continue reading below for instructions on how to serve the answer correctly. Bring your copy of the answer and all court papers to court on the hearing date.

Serving Your Written Answer

After you have completed a written answer, you must serve the petitioner by following the instructions below.

1. Make two copies of the completed written answer.

2. Have process server or someone over the age of 18, who is not a party in this action, mail a copy of the written answer by regular mail to the attorney for the petitioner or to the petitioner directly only if there is no attorney.

3. You may also have a process server or someone over the age of 18, who is not a party in the action, personally deliver the written answer to the petitioner’s attorney, or the petitioner directly only if there is no attorney. 

4. Next you need an affidavit swearing that the written answer was served. Download the free Affidavit of Service civil court form.

5. Prepare an Affidavit of Service for the service on the petitioner and have the person who served the written answer sign the Affidavit of Service in front of a notary.

6. Attach the original Affidavit of Service to the original written answer. 

7. For Nonpayment cases, return the written answer and affidavit of service to the Court within five days of receiving the notice of petition.

8. For Holdover cases, if the notice of petition requires you to answer prior to the hearing date, you must return the original of the answer and affidavit of service in the court at least three days before the hearing date. Otherwise, you may bring the written answer to court on the hearing date.

9. Keep a copy for your records and bring all your papers with you when you come to court for the hearing date.

Jury Demand

You can also request that your case be tried before a jury. In a jury trial, the jury, not the judge, makes the decision and a judgment is entered based on the verdict reached by the jury.

If you wish to make a jury demand, you should request a jury trial when you answer the petition. You can tell the clerk and pay the jury demand fee. Go to Court Fees to learn the amount of the fee. If you cannot afford to pay the fee, you may be entitled to have the fee waived. Refer to Poor Person’s Relief to learn more.

Keep in mind that the Judge may later decide that you are not entitled to a jury trial because you gave up your right in your lease. Most leases include an agreement to give up a right to a jury trial.

You can also request a jury demand at a later time. However, the judge may deny your request, if you wait too long. For more information on filing a late jury demand, go to Timeliness of Jury Demands to read the Civil Court Directive on the subject.

Inspection Request

If you have a repair problem in your apartment or building, you should ask for an inspection from the clerk or the Judge the first time you are in court or as soon after that as possible. An inspector from the Department of Housing Preservation and Development will come to your home and make a report to the court. The report will help you prove that there are bad conditions that need repair.

If you request an inspection, you may get a date for the inspection and a date to return to court. You will be asked to make a list of the repairs needed. Make sure to include every problem in each room of your apartment and in the public areas of the building. To view a copy of the Tenant’s Request for Inspection, make an Inspection Request. If you fail to include a problem or area on the inspection request form, the inspector may refuse to look at it.

On the day of the inspection, it is important that someone be home to let the inspector in. Be sure to show the inspector all of the problems you listed.

Traverse Hearing

If you did not receive a copy of the notice of petition and petition, or you believe that the papers were not served properly, that is a defense to the case and should be included in your answer. Refer to Service of the Notice of Petition and Petition to learn more about the proper way to deliver legal papers. If you raise this defense, the judge may decide to set a date for a hearing, called a traverse hearing, to decide whether the service of the court papers was proper.

At the traverse hearing, the landlord’s process server may be asked to tell under oath how he or she served you with the court papers. You will have the right to ask the process server questions, to testify yourself, and to call witnesses to explain that the papers were not delivered properly.

If the judge finds that the service of the papers were not served properly, the case will be dismissed without prejudice. The landlord may start the case over again by giving you a new set of papers. If you receive another set of papers, you must come to court and answer them again.

To Proceed as a Poor Person

If you do not have enough money to pay the court costs and fees of the proceeding, you may ask the court to permit you to proceed without having to pay the court costs. These costs include the charges for starting an HP proceeding, filing a petition, filing a jury demand, and appealing a court ruling.

Your application for “poor person’s relief” must be supported by an affidavit which must:

1) set forth the amount and sources of your income, and list your property with its value;

2) state that you are unable to pay the costs, fees and expenses necessary to prosecute or defend the action or proceeding or to maintain or respond to the appeal;

3) indicate the nature of the action or proceeding; 

4) provide sufficient facts so that the merit of your claims can be determined;

5) indicate whether any other person would benefit from any award in your case, and if so, whether that person is unable to pay such costs fees and expenses.

You may obtain the affidavit from the court or you may download the civil court form now by clicking on Poor Person’s Relief.

If the judge approves your application, the judge will sign an order listing which fees and costs you do not have to pay. This order may also contain directions that if you recover any money in your lawsuit, the money shall be paid to the Clerk of the Court which may then recover the fees and costs which you previously could not afford to pay.

Once your application has been approved the judge may order that a copy of your application and the order granting it be mailed to the New York City Corporation Counsel’s office at 100 Church Street, New York, NY 10007.

Service of the Notice of Petition and Petition to Start a Nonpayment or Holdover Proceeding

The procedure for service of the papers to start a residential landlord-tenant proceeding is set forth below. For further information on service, you may refer to the Real Property Actions and Proceedings Law section 735.

Who May Serve

1. You may NOT serve the papers yourself.

2. Anyone over the age of 18 years, and NOT A PARTY to the action may serve the papers.

3. If you wish, you may hire a Process Server to serve the papers.

When to Serve

Papers may not be served on Sunday. Papers may be served during three time periods:

Non-working hours: 6:00 a.m. – 7:59 a.m.

Working hours: 8:00 a.m. – 6:00 p.m.

Non-working hours: 6:01 p.m. – 10:30 p.m.

How to Serve

A copy of the papers shall be served on the respondent through one of the following methods:

a. Personal delivery: A copy of the papers may be served by giving it to the respondent in his or her hand. The papers can be handed to the respondent anywhere. If the respondent refuses to take the papers in hand, the papers may be put down on the floor or on a piece of furniture where the respondent can see them.

b. Substituted delivery: A copy of the papers may be given to any individual who answers the apartment door as long as he or she resides or is employed in the apartment and is of an appropriate age and has appropriate judgment to receive the papers. By the next business day, the process server must mail one copy of the papers by regular mail and one copy by certified mail. Keep the certified mail receipts.

c. Conspicuous Place delivery: If the process server is unsuccessful on the first try to serve the papers either by personal delivery or substituted service, then he or she must make a second attempt during a different time period (see time periods above). For example, if no one is home during working hours, the server can return at 7:30 p.m. during non-working hours. After two unsuccessful attempts have been made to serve the person at home either by personal delivery or substituted service, the server may then use conspicuous place delivery. This is also known as “nail and mail.”

This delivery requires that a copy of the papers be affixed to the door of the actual residence of the respondent or be slipped under the entrance door of the apartment. By the next business day, the server must mail one copy of the papers by regular mail and one copy by certified mail to the respondent. Keep the certified mail receipts.

After the petition and notice of petition are served, the process server must fill out an affidavit of service.

Affidavit of Service

1. After the COPY of the notice of petition and petition has been served, by the person who served it (process server) shall fill out an Affidavit of Service. You may download the form now by clicking on Affidavit of Service, or you may obtain a form from the Court Clerk. The Affidavit of Service shall include a description of the color of skin, hair color, approximate age, approximate weight and height, and other identifying features of the person served.

2. After the Affidavit of Service has been filled out the process server shall sign it before a Notary Public, and have it notarized.

3. The completed Affidavit of Service, must be returned to the Clerk’s Office within 3 days of the personal delivery or mailing. Make copies of the affidavit of service for your records prior to filing it with the court.

4. You should bring a copy of the papers with you to court on the hearing date.

Service Under RPAPL sec. 735

735. Manner of service; filing; when service complete

1. Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,

(a) if a natural person, as follows: at the property sought to be recovered, and if such property is not the place of residence of such person and if the petitioner shall have written information of the residence address of such person, at the last residence address as to which the petitioner has such information, or if the petitioner shall have no such information, but shall have written information of the place of business or employment of such person, to the last business or employment address as to which the petitioner has such information; and

(b) if a corporation, joint-stock or other unincorporated association, as follows: at the property sought to be recovered, and if the principal office or principal place of business of such corporation, joint stock or other unincorporated association is not located on the property sought to be recovered, and if the petitioner shall have written information of the principal office or principal place of business within the state, at the last place as to which petitioner has such information, or if the petitioner shall have no such information but shall have written information of any office or place of business within the state, to any such place as to which the petitioner has such information. Allegations as to such information as may affect the mailing address shall be set forth either in the petition, or in a separate affidavit and filed as part of the proof of service.

2. The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after;

(a) personal delivery to respondent, when service has been made by that means, and such service shall be complete immediately upon such personal delivery; or

(b) mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filing of proof of service.

Stopping An Eviction

If you have received a notice from a marshal that you are to be evicted you must come to court as soon as possible. This is a very serious matter, and you must take care of it immediately. If you do not take care of it, the marshal may remove you and your property from the apartment. You can call the marshal’s office to find out if the marshal has scheduled your eviction yet. The phone number for the marshal’s office is on the notice.

Bring the notice and any other papers that you have received from your landlord, including any rent receipts, to the court. To find out where to go in your county to try to stop or delay your eviction, refer to Locations.

At the courthouse you will fill out an affidavit in support of an Order to Show Cause. The type of affidavit depends on whether you ever answered or appeared in the case. You will fill out an affidavit explaining why you should not be evicted.

If you never answered a petition and the petitioner obtained a default judgment against you, you will fill out an Affidavit In Support of An Order To Show Cause to Vacate A Judgment Based Upon Failure To Answer. In the affidavit you will explain the reason you did not answer the petition – for example – you never received a copy of it. You will also explain your defense to the proceeding – for example – you paid all the rent. You can use the free DIY (Do-It-Yourself) Form to make your Affidavit in Support of an Order to Show Cause.

If you answered a petition, and a court order or stipulation resulted, or you did not appear in the courtroom and a default judgment was entered, you will fill out an Affidavit in Support of an Order to Show Cause To Vacate A Judgment. If you need more time to pay a judgment or an order, indicate how much time you need and why in the affidavit.

The clerk will send your papers, along with the court file to the judge who handled your case. You may have to wait in the clerk’s office or to go to the courtroom where your papers have been sent. The Judge may sign your order to show cause and stop the eviction until the case can be heard. In some situations, the judge may sign the order but not stop the eviction. The Judge may also sign the order to show cause, but place conditions, such as paying the rent or bringing proof of funds to pay to court. You must read the order to show cause carefully.

If the judge signs your order to show cause, you must then serve the papers by process server on the other side and on the marshal according to the directions in the order to show cause. You must return to the courthouse on the hearing date with proof of service at the time and in the room designated on the Order to Show Cause.

If the judge declines to sign your order to show cause, or signs it upon conditions that you do not agree with, you may challenge this determination by going to the Appellate Term. You may go to Locations to find the address of the Appellate Term in your county.

A Resolution Part is a courtroom where the landlord and tenant can discuss their differences before a Judge or Court Attorney to see if an agreement can be reached to settle the dispute. You may also be there for a motion or an order to show cause.

Resolution Part

A Resolution Part is presided over by a Judge, who is assisted by two court attorneys, a clerk, and a court officer. The court officer, wearing the uniform, stands in the courtroom to maintain order. The clerk, sitting at a desk at the front of the courtroom, can answer any questions you may have about the calendar or the Judge’s rules. The court attorneys, who are lawyers, assist the Judge. In addition, volunteer court representatives may be present to assist. The Judge sits on the bench at the front of the Courtroom and hears motions and cases and reviews stipulations and orders to show cause.

Each Resolution Part has its own rules which are posted on the wall and can be obtained from the court clerk. You can also view the Judge’s rules at Part Rules. When you arrive in the Resolution Part you should check in with the clerk so that the court knows that you are present. If you need an interpreter, tell the clerk when you check in.

When a case is called, the landlord and tenant, or their attorneys will meet with the judge or court attorney to discuss the case. If you are not the named tenant or the named landlord, but are in court on their behalf, you should let the court personnel know. If you are a tenant and your apartment needs repairs, you can ask for an inspection. If you are a landlord and you have completed the repairs, you can ask for an inspection. You may go to Inspection Request to view the civil court form. You will have to come back to Court at a later date if the Judge grants the request for an inspection. You may have an attorney represent you on your case. If you need time to get an attorney or if you need documents that you do not have with you today, or if you have another reason for not being ready, you can ask to come back at a later date. This is called an adjournment. You are entitled to one adjournment of at least 14 days.

While you are waiting for the case to be called, you must be quiet. Just as you would want other people to be quiet when your case is being heard, others in the courtroom should receive the same courtesy. If you are approached by the other party or the party’s lawyer in your case, you do not have to speak to that person outside the presence of the judge or court attorney. However, you should feel free to step outside the courtroom to speak to the other party or lawyer only if you want to. Every case will be discussed by either the judge or the court attorney before you leave.

If you are interested in mediation, tell the clerk. In a mediation session, a professionally trained neutral person sits down with the parties, and each party has an opportunity to explain his or her position on the issues in dispute, listen to each other, and work together to reach a mutually acceptable solution. Any agreement reached through mediation will be reviewed by the Court. If you are unable to resolve your case through mediation, your case will be sent back to the Resolution Part. Not all cases are appropriate for mediation. Learn more about mediation at Dispute Resolution Through Mediation. If you wish to have a mediator handle your case either tell the court clerk or say so when you answer the calendar.

When your case is called the judge or court attorney will discuss the case to see if the case can be settled. If after discussing the case, the landlord and tenant agree to a settlement of the case, a document called a Stipulation of Settlement will be written up for the landlord and tenant to read and sign. No one can force anyone to settle a case or sign an agreement. No one should agree to settle a case if they do not agree with the terms of the settlement. The Stipulation of Settlement is a binding agreement between the landlord and tenant. In the Stipulation of Settlement, the landlord and tenant may agree to do certain things by certain dates. If the landlord or tenant fails to follow through on her or his end of the agreement, there may be very serious consequences. It is important that you only make an agreement that you know you can keep and that you agree with.

If, after discussing the case, the landlord and tenant cannot reach an agreement, the case will be referred to another part of the Housing Court, called a Trial Part, for trial. Except, cases assigned to the HP Part remain in the part for trial and do not go to a different Trial Part. Your trial will be scheduled for a later day.

Restoration After Eviction

If you think you have been improperly evicted by a marshal based upon a court order or judgment you may seek to be restored to possession. You should come to court as soon as possible. If your landlord has illegally locked you out of your apartment without first going to court and obtaining a judgment of possession and a warrant of eviction, you may also seek to be restored to possession, but you must start a proceeding against your landlord. You may refer to illegal lock-out for more information.

To find out where to go in your county to be restored to possession after eviction by a marshal, go to Locations. At the court, you will fill out an Affidavit In Support Of An Order To Show Cause To Restore To Possession. In your affidavit, you must explain the reasons that entitle you to be put back into your apartment. If you failed to answer a petition or failed to appear in court, you must explain this. If you have defenses to the proceeding, for example, that the rent was paid and you have receipts, you must list your defenses. You should bring all documents in support of your claim. Once you have filled out the Affidavit, the clerk will witness it for you.

The clerk will then submit your Affidavit and an Order to Show Cause to a Judge for review. You may have to wait in the clerk’s office or go to the courtroom where your papers have been sent. If your application is signed you will need two or three copies of the Order to Show Cause and Affidavit in Support. You will either be given copies or lent the originals so that you can make the copies yourself. The original Order to Show Cause and Affidavit in Support goes back to the Clerk. You must then serve a copy of the papers on the other side in the manner directed in the order to show cause.

You must return to court on the hearing date, which will generally be within one or two days, at the room and time indicated on the order to show cause. You should bring proof of service, a copy of the papers and any other proof of your defenses with you on the hearing date.

If the judge declines to sign your Order to Show Cause or signs it with conditions that you do not agree with, you may challenge this determination by going to the Appellate Term. You may refer to Locations to find the addresses of the Appellate Term in your county.

You can also watch a community seminar discussing what legal and procedural steps to take if you have been evicted from your home called, “What to Do If You’ve Been Evicted.” 

Adjournments

An adjournment may only be granted by the judge presiding at the time of the hearing. You can not call the court clerk for this purpose because the clerk is not permitted to grant adjournments. To get an adjournment, you should appear at the hearing at the appointed time. You will be given an opportunity to explain to the judge your reason for requesting an adjournment. If you know the name of the Judge assigned to your case, you should check the Judge’s Part Rules to see if he or she has any requirements that may not be covered in this section. Click on Judge’s Rules to check. You are entitled to one adjournment of at least 14 days.

Sending Someone to Request the Adjournment

If it is an emergency and you cannot appear yourself to request the adjournment, but wish to send someone on your behalf, you must give that person written authorization to make the request for you. That person must bring the written authorization to the court.

The written authorizing statement which allows someone to request an adjournment on your behalf must contain the following items:

1. The index number of your case.

2. Your name and your address.

3. A signed statement that you are allowing the person to request an adjournment for you.

4. The name of the person or legal service you are sending.

5. The reason you are not appearing yourself to make the request.

The person or legal service who comes to court for you must bring this statement and all other papers that you received, and should be able to tell the clerk the reason for the request.

The Judge may deny the request for adjournment. If the request is denied, you will be marked in default, which may be serious. You can learn more about this and other housing court procedures by reading our Legal and Procedural Information sections.

Writing a Letter to Request an Adjournment

In an extreme emergency, where neither you nor anyone else can appear on your behalf, you may write a letter to the court. You must explain your reason for making the request and be sure to include the case number, the year of your case, the scheduled date of the hearing you will not be able to attend, and the Part and room number where your case is scheduled.

Address the letter to the appropriate civil court clerk’s office. Send a copy of this letter to the other party to the action. If the judge decides to grant your adjournment, you will be notified.

If you are able to go to the courthouse before your court date, you can request an adjournment by filling out a form that you can get from a court clerk. If the request is denied, you will be marked in default, which may be very serious.

Orders to Show Cause

An Order to Show Cause is a way to present to a judge the reasons why the court should order relief to a party. For example, a tenant who has failed to appear and had a judgment entered against him or her may ask the court to vacate the judgment and restore the case to the calendar; or a landlord may request an order awarding a judgment and warrant of eviction against a tenant who has failed to live up to an agreement to pay rent.

The Order to Show Cause is an alternative to the notice of motion and is different from it, as the Order to Show Cause can shorten the time within which the parties must return to court. It is often used in emergency situations where a stay of the proceedings is required, or if an immediate result is sought. Another significant difference is that a judge must sign an Order to Show Cause. This means that the judge may decline to sign it. A notice of motion will appear on the calendar automatically, and does not need a judge’s signature. If you are not sure a judge would sign your order to show cause, if you do not need to appear in court within the motion service time, or if you do not seek interim relief such as a stay before the motion is heard, you may decide to bring a motion instead of an order to show cause.

The Order to Show Cause informs your opposition of what you are seeking from the court and why. It provides the date, time and location where the request will be made. The Order to Show Cause often contains a direction to the parties that they stop some specific activity, like an eviction, until the court hears or decides the motion.

In limited cases an Order to Show Cause can be used to start a case, as an alternative to a notice of petition. Ordinarily an HP case and an illegal lockout are commenced this way.

The requirements for making a motion are standardized and generally more demanding than that for making an Order to Show Cause. Order to Show Cause forms are available at the courthouse, and a judge can set the terms, such as when it will be heard in court, how it will be served on the other side and any conditions or requirements in order to obtain a stay of enforcement of an order or judgment pending the hearing.

The Order to Show Cause must be accompanied by an “Affidavit in Support” and copies of any documents that support the request and would persuade the judge your application should be granted. Copies of all these papers must be served on all the parties in the manner directed on the Order to Show Cause itself. A party served with an Order to Show Cause may prepare papers to oppose the motion. On the hearing date, all parties must come to court and the judge will decide the Order to Show Cause.

If you would like to bring an Order to Show Cause or if you have been served with one and you want to oppose it, continue reading below.

Affidavit in Support

An Order to Show Cause must be supported by an Affidavit. An Affidavit is a sworn statement made before the clerk or notary public which explains to the court why your request should be granted.

The Clerk will give you a free Civil Court form when you come to court, or you may use one of your own, or download a form at Affidavit in Support. To find out where to go in your county to bring an Order to Show Cause, go to Locations. If you missed your court date or didn’t answer a petition in a nonpayment or holdover case, you can use the Tenant Affidavit to Vacate a Default Judgment program to make your affidavit in support of your order to show cause. If you need more time to do what you were ordered to do or agreed to do, or the landlord did not do what he or she was ordered to do or agreed to do, or there are mistakes in a stipulation and you need to come back to court to ask the judge for something in your case, you can use the Tenant Affidavit to Restore Case to Calendar DIY program to make your affidavit in support of your order to show cause. In the Affidavit in support you should:

1. State the reason you are making your request.

2. State the relevant facts about your case.

3. State whether or not you have ever made the same request before.

4. Attach copies of any relevant documents you are referring to in your Affidavit.

After you have filled out the Affidavit, you must sign it at the bottom in front of the clerk, or in front of a notary, so that it can be attached to the Order to Show Cause and submitted to a Judge.

Submission to the Judge

After the Affidavit is witnessed by the clerk, the clerk will then submit your Affidavit with the Order to Show Cause to a Judge for review. You may have to wait awhile in the clerk’s office.

If your application is signed by a Judge, you will need two or three copies of the Order to Show Cause and supporting papers. You will either be given copies or lent the originals so that you can make copies yourself. There are copy machines in the clerk’s office, so bring change.

The original Order to Show Cause and Affidavit in Support goes back to the clerk. You must then serve a copy of the papers on the other side in the manner directed in the Order to Show Cause. The Order to Show Cause will often contain a provision requiring service by a specific date. If you are a respondent who has been served with a Marshal’s Notice, you will also have to serve a copy of the Order to Show Cause on the Marshal. If your Order to Show Cause contains a provision which stays any eviction until the hearing date, and if you fail to serve the Marshal after the Judge signs your Order to Show Cause, you might get evicted.

The papers should be served by process server or someone over the age of 18, who is not a party in the action, unless the judge has permitted otherwise. The clerk will give you further instructions, or you may speak with a Housing Court counselor in the Help Center.

Opposition Papers

If you wish to oppose an order to show cause, you may prepare an Affidavit in Opposition. If you do not submit opposition papers and/or fail to appear in court to oppose the Order to Show Cause, the judge may decide to grant the relief requested based on the information in the Order to Show Cause and your default.

An affidavit is a sworn statement which must be signed in front of a notary public or a court clerk. You may attach copies of any relevant documents to the Affidavit in Opposition. You can download a free Civil Court form by at Affidavit in Opposition, you may use your own form, or obtain one from the clerk or the help center.

After you have prepared the opposition papers, follow the procedure outlined below:

1. Copies of the opposition papers must be served  by process server on all other parties.

2. Opposition papers must be served by process server.

3. If a party has an attorney, the papers must be served by  process server on the attorney. Service of the opposition papers may be made by delivering the papers to the attorney personally, or by mailing the papers to the attorney.

4. After the opposition papers have been served, the process server must fill out an Affidavit of Service which states how and when the papers were served. The Affidavit of Service must be signed in front of a notary or a court clerk. You may download the free Housing Court form at Affidavit of Service.

5. Make a copy of the Affidavit of Service for your records and attach the original to the copy for the court.

6. Opposition papers can be filed in the courtroom on the date that the Order to Show Cause is heard, or in the clerk’s office before that date.

Cross-Motions

If you have been served with an order to show cause and wish to ask the court for relief of your own, you may bring your own Order to Show Cause. Tell the clerk that you want your Order to Show Cause heard on the same day as the Order to Show Cause that is already scheduled to be heard, and if there is enough time, they can be calendared together. You can also schedule a cross-motion for the same day as the Order to Show Cause is noticed to be heard.

Reply Papers

If you have received opposition papers prior to the hearing date of the Order to Show Cause, you may have time to prepare an affidavit in reply. You may go to Reply Affidavit to download a free Civil Court form; you may use a form of your own; or you may obtain one from the clerk or the Housing Court Help Center. You must serve by process server the reply affidavit on the other side and bring extra copies and the original, along with proof of service, to the courtroom on the date the Order to Show Cause is to be heard. If you did not have time to prepare reply papers and feel that it is necessary, you can ask the court for an adjournment for time to prepare reply papers. The judge may or may not grant your request.

Appearing in Court

You are required to appear in court on the date the Order to Show Cause is scheduled to be heard. You must appear at the time and place stated in the Order to Show Cause. If you need directions to the courthouse, Directions are available. In general, if you do not appear, and you are the moving party, your Order to Show Cause will be denied; if you do not oppose the motion, the Order to Show Cause may be granted on default. You should give yourself extra time to get to the courtroom since all visitors are required to go through metal detectors at the entrance to the courthouse. You should bring your copies of the papers with you and any papers and affidavits that you have not yet filed with the court.

The courtroom is presided over by a Judge, who is assisted by a court attorney, a clerk and a court officer. The court officer, wearing a uniform, maintains order in the courtroom. The clerk, sitting at a desk at the front of the courtroom, can answer any questions you have about the calendar or the judge’s rules. The Judge sits on the bench at the front of the courtroom and hears arguments for and against motions and orders to show cause, reviews stipulations of settlement, and decides request for adjournments. The court attorney assists the Judge and may hold a conference with the parties to see if the order to show cause can be settled.

There is a calendar posted outside the courtroom that lists all the cases that will be called that day. Each case has a number. You should sit quietly in the courtroom and listen for your case to be called. You will have a chance to explain your case to the judge or the judge’s court attorney. You always have the right to go before the Judge. You are not required to settle the Order to Show Cause, and you may request a hearing on the record. In that event, the Judge will decide your application.

If you are not ready to discuss the Order to Show Cause on the return date, or you need more time to prepare papers, when the case is called you can ask the court for a postponement or an adjournment of your application. If your case has been adjourned before and marked “final” it means the judge will not allow any further adjournments.

The other side may want to discuss the Order to Show Cause with you alone to see if you can come to an agreement. If you reach an agreement, you and the other side can write the terms of your agreement into a stipulation. However, you do not have to talk to the other side alone. You can wait until your case is called by the court and the judge will decide.

The Decision on the Order to Show Cause

If you and the other side are unable to agree about the relief being requested, the judge will make a decision on the Order to Show Cause. Sometimes, the judge makes a decision immediately. The judge has 30 days to decide the Order to Show Cause. Some Judges will mail you a copy of the order if you provide a self-addressed stamped envelope. Otherwise, you will have to go to the courthouse to get a copy of the decision. To find out where to go in your county refer to Locations.

Depending on the relief sought, the judge’s decision may award a judgment to the winning party. When the winning party enters the judgment and serves a copy of the judgment with notice of entry on the losing party, this start’s the loser’s time to appeal running. To learn more, refer to Serving Notice of Entry.

If you are unhappy with the judge’s decision and think that the judge made a legal or factual mistake, you can make a motion to reargue or renew, or file an appeal. The filing of an appeal alone does not stop or stay the execution of a judgment. An appeal requires the posting of an undertaking to stay an eviction. 

An appeal must be filed within 30 days from the service of the order appealed from and written notice of entry. If neither side has served a copy of the decision and order with notice of entry, there is no time limitation on the filing of an appeal.

Stipulations and Settlements

In the Resolution Part, Mediation, or even in the Trial Part, the parties, with the assistance of the Judge, the Judge’s court attorney, or the court mediator, will discuss the case in an effort to reach a settlement. Most cases in Housing Court are settled, meaning the parties come to an agreement, usually called a “Stipulation of Settlement,” which is written down and signed by the parties and the Judge. 

When you sign a Stipulation of Settlement, you are making a binding legal agreement that must be followed. Therefore, you must be very careful to read the agreement, understand it, and be certain that you will be able to do everything you have promised. The court attorney can explain any details in the Stipulation of Settlement that you do not understand. If you have any questions or doubts, you have the right to ask to talk to the Judge who must approve your settlement.

What a stipulation provides will depend on what the parties negotiate and the facts of the particular case. For more information about settling a nonpayment or holdover case, click on Tenant’s Guide to Housing Court, or Landlord’s Guide to Housing Court.

If you decide to sign the stipulation of settlement the judge will speak you to make sure you understand the terms of the settlement. This is called an allocution. If you do not wish to settle the case, you have a right to a trial before a judge.

If you sign an agreement and then you cannot do what you promised – for example, you cannot pay on time or make repairs on time – you should come to court and bring an Order to Show Cause to request more time. If the other side has not done what they are supposed to do in the agreement, you can also come to court and bring an Order to Show Cause to request help from the court. Click on Order to Show Cause if you want to learn more. A Judge will read your Order to Show Cause and decide whether to grant your request.

Stays Before Entry of Judgment

Any party may seek a stay of a proceeding before a judgment is entered.

A judge may stay proceedings in a case, upon terms that are just, as well as for the reasons that are discussed below.

A landlord or a tenant seeking to obtain an extension of time to comply with an order to pay money, leave the premises, make repairs, or correct mathematical errors, may make an application to the court.

In order to obtain a stay you must come to court and fill out an Order to Show Cause. To read more about this process click on Orders To Show Cause. To find out where to go in your county, click on Locations & Phone Listings. 

If a judgment has already been entered in your case and you seek a stay, click on Stays after entry of judgment.

Stay for Failure to Make Repairs

A tenant may seek a stay of a pending nonpayment proceeding if he/she was constructively evicted, or upon proof that conditions dangerous to life, health or safety exist, as long as the condition was not caused by the tenant. A stay may also be requested if violations have been placed against the premises showing constructive eviction or dangerous conditions. (There must be proper proof that a notice or order to remove the violations has been made by the city department charged with enforcement.) Once violations have been placed, the burden of disproving the condition described by the violation is on the landlord or petitioner.

In order to obtain the stay the tenant must deposit the amount of rent due with the court. The stay may be vacated if such deposit is not made or if the conditions are repaired. During the stay, the court may direct the release of funds on deposit to pay for maintenance of the premises, repairs or utility bills.

Stay Based Upon Utility Shut-Off

A tenant residing in a multiple dwelling may seek a stay of a pending proceeding in the event that utilities are discontinued due to the landlord’s failure to pay. The stay shall remain in effect until the landlord pays the amount owed and the utilities are restored to working order.

Stay if Building Where Tenant on Public Assistance Resides has Hazardous Violations

A tenant who receives welfare may seek a stay of entry of judgment in a nonpayment proceeding if there are violations in the building for dangerous conditions. This defense is available only for violations reported by DHPD to DSS. DSS must have withheld the rent from the landlord due to the violations in order for the tenant to assert this defense.

Stay Based Upon Change of Attorneys

There is an automatic stay of a proceeding if the attorney of record of any party dies, becomes incapacitated or is removed, suspended or otherwise disabled at any time before judgment. No further proceedings can be taken against this party without permission from the court. The stay continues until thirty days after notice to appoint another attorney has been served upon the party personally or in a manner directed by the court. If at the end of the stay the party has not replaced his/her attorney, or if he/she decided to continue without an attorney, pro se, the proceedings may continue against this party.

Stay Based Upon DHCR Order

In some cases a cause of action or a defense in a proceeding brought in Housing Court may be based upon an order issued by the DHCR. If a landlord or a tenant of a rent-stabilized or rent-controlled apartment files a complaint with the DHCR and disagrees with the resulting order issued by a District Rent Administrator, he/she may bring a Petition for Administrative Review (PAR) at the DHCR. The order may be stayed pending determination of the PAR.

The proper filing of a PAR against a DHCR order, other than an order adjusting, fixing or establishing the legal regulated rent, stays that order until the DHCR Commissioner makes a final determination. Where the DHCR order provides for an adjustment in rent, the retroactive portion of the adjustment, if any, is generally stayed, but not the prospective portion.

The DHCR Commissioner may grant or vacate a stay of its orders under appropriate circumstances, on such terms and conditions as the Commissioner deems appropriate.

 

Stays after Entry of Judgment in Nonpayment Proceedings

A tenant who lost at trial and seeks to stay the issuance of the warrant of eviction must apply to the judge who granted the landlord the judgment.

A landlord or tenant seeking to obtain an extension of time to comply with orders to pay money, vacate the premises, make repairs, or correct mathematical errors will be directed to the judge presiding in the Part to which the case is assigned. If that judge is not available, the party will be directed to a different judge.

The court has general power to stay proceedings in a proper case, upon such terms as may be just, as well as specific powers as discussed below.

In order to obtain a stay you must come to court and fill out an Order to Show Cause. To read more about this process click on Orders To Show Cause. To find out where to go in your county, click on Locations & Phone Listings.

Staying Eviction by Paying Rent

If the tenant in a nonpayment proceeding pays to the landlord all of the rent then due (including rent that has become due since the date of the petition) before the court case is heard, the landlord must accept the rent and the case cannot go forward. At any time before a warrant has issued, the tenant in a nonpayment case may obtain a stay of issuance of the warrant by depositing the full amount of rent due plus the costs of the proceeding with the clerk of the court. The amount deposited will be turned over to the landlord upon request.

Even after a warrant has issued, as long as there has not yet been an actual eviction, if the tenant in a nonpayment proceeding pays all of the rent then due to the landlord, the warrant must be vacated, unless the landlord can show that the tenant withheld the rent in bad faith.

Stay of Evictions of Persons or Dependents of Persons Serving in the Military

A landlord may not evict a person serving in the military, or his or her spouse, children or other dependents from an apartment, during the period of military service without an application to the court. On such application the court may stay the proceedings for six months, unless the court determines that the respondent’s ability to pay rent is not materially affected by the military service.

Under certain circumstances, a person serving in the military or his or her dependents may also seek a stay of an action or proceeding or a stay of the enforcement of a judgment or order.

Automatic Stay After Filing Bankruptcy Petition 

When a residential tenant files a bankruptcy petition, an automatic stay prevents the landlord from bringing or continuing a case to obtain possession and from enforcing a judgment obtained before the start of the bankruptcy case. The purpose of the stay is to give the debtor a breathing spell from his creditors.

The automatic stay only applies to proceedings concerning property in which the debtor has an interest at the time the bankruptcy proceeding is commenced, which is when the bankruptcy proceeding is filed.

In landlord/tenant cases the court may determine that the tenant no longer has an interest to protect at the time of filing a bankruptcy petition if the warrant of eviction has already issued. In both the New York State courts and the federal Bankruptcy Court, depending on the facts of the individual cases, the issuance of the warrant of eviction may or may not be a sufficient basis upon which to lift or modify the automatic stay, or to conclude that the bankruptcy petition did not qualify for an automatic stay.

After a tenant files for bankruptcy a landlord may seek to have the stay in Bankruptcy Court vacated, in order to commence or continue an eviction proceeding. The Bankruptcy Court may terminate, modify or condition the stay based upon various factors, including payment of ongoing rent, the condition of the premises and the equities of the case. If the stay in Bankruptcy Court is lifted, the Civil Court will have jurisdiction to hear and decide the eviction proceeding, and the landlord who obtains a judgment and warrant of eviction will be able to enforce a possessory judgment with eviction. 

If the tenant’s debt, which includes past rent due, is discharged at the conclusion of the bankruptcy proceeding, the landlord may then seek recovery of the premises and eviction of the tenant/debtor. This is because while the debt may have been discharged, it has not been extinguished, and discharge of debt is not equivalent to payment of debt. A discharge only prevents a creditor from proceeding against a debtor on the debt as a personal liability, but does not eliminate any of the other consequences of that debt. Therefore, as long as the landlord does not attempt to obtain a money judgment for a discharged debt, the landlord is free to commence a nonpayment proceeding to recover possession. Thus a landlord may evict the tenant/debtor for his/her failure to pay rent which has been discharged in bankruptcy. 

A debtor may voluntarily repay a debt that has been discharged even though the debt can no longer be legally enforced.

 Vacating A Default Judgment

If you have been sued in Housing Court and a judgment has been entered against you because you defaulted, that is, you failed to answer or did not show up to defend yourself, you can seek to have the judgment vacated (thrown out). If you do not, you could be evicted from your home by a marshal as a result of the judgment once the warrant of eviction is issued.

If you are not sure whether a judgment has been entered against you, refer to Locations and find out where to go in your county to check. If you find that a judgment has not been granted against you, then you should immediately file an answer. If you have already received a notice from a marshal, you should come to court right away.

To vacate a default judgment and obtain a stay of eviction, you should fill out an Order to Show Cause. An Order to Show Cause is a legal paper, signed by the judge, that orders the other side to appear in court and “show cause,” that is, give a good reason, why the judgment should not be vacated. You must fill out an Affidavit in Support of the Order To Show Cause explaining the reason you did not go to court, such as, you never received notice of the proceeding, or you were sick; and, you must explain your defenses to the claims against you, such as, you do not owe the rent claimed, or you did not install the dishwasher in the kitchen in violation of the lease. To learn about the procedure, go to Order to Show Cause. If you missed your court date or didn’t answer a petition in a nonpayment or holdover case, you can use the Tenant Affidavit to Vacate a Default Judgment program to make your affidavit in support of your order to show cause.

If the judge vacates the default judgment and restores the case to the calendar, you must be ready to prove your side of the case.

Warrants

A warrant is a document issued by the court based upon a judgment of possession awarded by the court which permits the sheriff or marshal to remove persons from a premises. The warrant tells the sheriff or marshal the earliest date on which an eviction can take place according to the court’s judgment. The warrant also directs the sheriff or marshal to remove all persons who were named in the court case from the premises.

A warrant can only be issued to a sheriff or a marshal. After the judgment is awarded, you must contact the marshal so that the marshal can requisition the warrant from the court. For a list of New York City marshals, click on NYC Department of Investigation. The marshal will require the facts of the proceeding, including the index number, the names of the parties, the address of the premises, and a copy of the judgment, or, if it is a judgment based upon the respondent’s failure to answer, a letter requesting entry of the judgment. You will also have to pay the marshal a fee. The marshal will submit the papers to the court.

The warrant clerk will review the papers, and if everything is in order, the clerk will issue the warrant to the marshal. If the papers are defective, the clerk will return them to the marshal for correction.  After the marshal receives the warrant, the marshal is then ready to proceed with the eviction.

Judgments in Nonpayment Cases

The outcome of a landlord/tenant case is either a judgment, dismissal or discontinuance.

There may be a judgment based upon respondent’s failure to appear, or to answer, after trial, by a stipulation of settlement of the parties or by motion.

The final judgment determines the issues raised in the proceeding and establishes the rights and obligations of the parties. The successful party is also awarded the costs and disbursements of the proceeding.

If the petitioner cannot show it is entitled to a judgment, the proceeding may be dismissed with prejudice and cannot be brought again, or dismissed without prejudice and may be brought again. A case can also be discontinued by the petitioner before the respondent has answered, with permission of the respondent or by order of the court.

A respondent’s answer may contain a counterclaim, and the court may render a judgment on that counterclaim in favor of the respondent, or the counterclaim may be dismissed or discontinued with or without prejudice, or severed.

If the court awards the petitioner a possessory judgment, then a warrant of eviction may issue.

A final judgment in a nonpayment proceeding generally provides for both a money judgment and a possessory judgment. If the money judgment is timely paid, both the monetary and the possessory judgment are satisfied. If the money judgment is not timely paid, the respondent can be evicted based upon the possessory judgment, and the respondent is still liable to pay the money judgment amount. In some cases the court may also award a non-possessory money judgment, which means that the respondent is responsible for paying the money judgment, but cannot get evicted for not paying it.

Judgment when Respondent Fails to Answer

After a respondent is served he or she may either answer or not answer. If the respondent fails to answer within 10 days of the service of the notice of petition and petition, the petitioner may, after the respondent’s time to answer has expired, ask the court to enter a judgment. This judgment may be for money if the petition and notice of petition were served by in-hand delivery, otherwise, it will be for possession only.

In most cases, the judgment and the warrant are requested at the same time. A petitioner will contact a marshal, and give the marshal a letter addressed to the court requesting that a judgment be entered. In addition, the petitioner must provide the marshal with a current non-military affidavit. For more information, see Non-Military Affidavit below. The marshal will then submit the papers to the court together with a requisition for the issuance of the warrant.

When the clerk receives these papers, the clerk will review the papers for legal and procedural sufficiency. If the papers are correct, the clerk will send them to a judge for him or her to review. Ultimately, it is up to the judge to order that the judgment be entered and the warrant issued.

After the judge signs the judgment, the clerk will issue the warrant to the marshal. The Marshal may then evict the respondent.

Judgment when Respondent Fails to Appear

If the respondent answers, the clerk will assign the case to a part. On the court date, the respondent may fail to appear. If the respondent fails to appear after the case is called on the calendar the petitioner may ask the judge to enter a judgment against the respondent. This judgment will generally be for money and possession. The judge, or the court attorney, will review the papers for legal and procedural sufficiency. For more information, click on Requirements for a Nonpayment Petition. You will also be required to provide information as to the respondent’s military status. If all the papers are in order, the judge will direct that a judgment be entered. The judgment based on respondent’s failure to appear will usually have a five-day stay of the issuance of the warrant, and the judge may require that the petitioner serve a copy of the judgment on the respondent. The judgment will normally permit the issuance of a warrant. Most petitioners contact a marshal, provide information and/or a copy of the judgment to the marshal and the marshal then files a request for the issuance of a warrant with the clerk.

Judgment based on Stipulation of Settlement

If both sides appear, the case will be ready to proceed. The vast majority of non-payment cases are settled in conferences which may include the petitioner, the respondent, the attorneys of either party, mediators, court attorneys, and at times even the Judge.

If the case is settled, a stipulation of settlement will be written. For more information, click on Stipulations of Settlement. The stipulation of settlement may provide for the issuance of a judgment and warrant. The stipulation may contain requirements for the petitioner to notify the respondent before the warrant may be issued. The stipulation may require the petitioner to make a motion to the court, either on notice or without notice to the other side, before the warrant can be executed. Whatever, the stipulation requires, the conditions must be complied with before the judgment and/or warrant can be entered or issued.

When the petitioner has a judgment and a warrant, the marshal still cannot evict the tenant until the earliest eviction date set by the court has passed and the marshal has served the tenant with a Notice of Eviction.

Judgments after Trial

If both parties appear and a settlement cannot be reached, the case will be sent to a Trial Part for trial before a Housing Court Judge. If the petitioner proves his or her case, the Judge will direct that a judgment be entered after the trial. This judgment will generally be for money and possession. If the petitioner fails to prove his or her case, the judge will dismiss the case.

The Judge may not issue his or her decision on the same day that you try the case. This is called “decision reserved.” The Judge may send you a copy of the decision in the mail. However, to be certain, you can call or come to court to learn if there has been a decision.

The judgment will normally permit the issuance of a warrant. Most petitioners contact a marshal, provide information and/or a copy of the judgment to the marshal and the marshal then files a request for the issuance of a warrant with the clerk. For more information, click on Warrants. Once the warrant issues, the marshal may then evict the respondent.

Non-Military Affidavit

In order to obtain a judgment on default, the petitioner must provide information to the court regarding the respondent’s military status. You may be required to file a non-military affidavit setting forth facts as to the basis of the belief that the respondent is not serving in the military, or is not a dependent of someone in military service. This affidavit generally must be less than 30 days old. You may click on Affidavit of Military Investigation to view and/or download a copy of the free Civil Court form. For more information, you may click on Non-Military Affidavit to read the Civil Court Directive on the subject.

Trial 

If the parties were unable to reach a settlement in the Resolution Part, the case will be ready to be tried. The case will be assigned to a Trial Part. The court will tell the parties where and when to appear for the trial.

At the trial, the parties each get a chance to present their side of the case, and the judge will make a decision and judgment based on the evidence and arguments presented. The parties must have all their witnesses and evidence ready to present at the trial. If you have a good reason for not being ready to try the case, such as a medical reason, or one of your witnesses is out of town, you can ask the Judge for an adjournment. If this becomes necessary you should notify the other side ahead of time by mail that you are going to ask the court for an adjournment.

A case may still be settled in a Trial Part. A settlement is a voluntary, binding agreement that resolves the differences between the parties to a lawsuit. If the case is settled, there is no trial.

Jury Trials

If the petitioner or respondent has properly filed a jury demand and paid the jury demand fee, the case will be tried before a jury. Jury trials are very infrequent in Housing Court proceedings because most leases contain jury waiver clauses. If the case is tried before a jury, the jury, not the judge, will make the decision and then a judgment will be entered based on the verdict reached by the jury. If the jury is unable to reach a verdict, the Judge will have to declare a mistrial and the case will have to be tried again before a new jury.

A jury trial begins with jury selection. A panel of prospective jurors is called for voir dire. The Court will examine the jurors as to their qualifications. A party is entitled to challenge a juror for cause when a prospective juror is not qualified, such as, is not impartial, is related to one of the parties, or will not follow the law. A party is also entitled to a limited number of peremptory challenges. Six jurors, plus alternates, must be selected to hear the case.

After each side presents testimony and evidence, the judge will deliver a charge to the jury, which sets forth the jury’s responsibility to decide the facts in light of the applicable rules of law.

Testimony of Witnesses

The petitioner’s case is presented first. After being sworn as a witness, the petitioner will tell his or her version of the incident. All relevant papers or other evidence should be presented at this time to be offered in evidence. When the petitioner has finished testifying, the respondent has the right to ask questions. This is called cross-examination. After a party has cross-examined a witness, the other side has the chance to redirect examination of the witness in order to re-question the witness on points covered during the cross-examination. Sometimes the Judge may ask questions to clarify matters. Other witnesses may be presented in support of the petitioner’s claims, and they, too can be cross-examined by the respondent and questioned by the Judge.

The respondent may then be sworn and tell his or her side of the story and offer evidence. All papers or other evidence should be presented at this time to be offered in evidence. When the respondent has finished testifying, the petitioner has the right to cross-examine the respondent. After a party has cross-examined a witness, the other side has the chance to redirect examination of the witness in order to re-question the witness on points covered during the cross-examination. Sometimes a Judge may ask questions to clarify matters. Other witnesses may be presented in support of the respondent’s claims, and they, too, can be cross-examined by the petitioner and questioned by the Judge. After the presentation of the respondent’s case, the petitioner has the right to ask the Judge for an opportunity to present evidence to rebut the respondent’s case.

Objections

There is a body of law called “rules of evidence.” The purpose of these rules is to make sure that evidence is relevant, reliable and authentic. Because of these rules certain testimony or documents may not be legally admissible. For example, an affidavit is not admissible in evidence because its admission would deprive the other side of the right to question the person who wrote it.

Parties to a lawsuit have a right to object to the introduction of evidence or the way a question is being asked or answered. The proper way to object is to say “objection.” The Judge may then ask what the basis for the objection is. If the Judge agrees with the objection, the Judge will say “sustained” and the evidence will not be admitted. If the Judge disagrees with the objection, the Judge will say “overruled” and the evidence will be admitted.

Trial Decision

When the trial is completed, you may have to wait for the Judge to write a decision. You may contact the court to see if a trial decision has been issued.

In a nonpayment or a holdover proceeding, the Judge may award a possessory judgment and/or a money judgment to the winning party. For more information, click on Judgments to read the appropriate section. If you are the losing party, you may want to appeal.

 Subpoenas

If you are unable to get a witness to appear voluntarily, or you need records produced in court that are not in your possession, you can ask the court to issue a subpoena. A subpoena is a legal document that commands the person named in it to appear in court to testify or to produce records. For example, police and fire department, Buildings Department, hospital, telephone or Con Edison records can be subpoenaed. An expert witness cannot be compelled to testify by subpoena.

If you would like to subpoena a witness or documents, you must come to the Clerk’s office and fill out the subpoena forms. Click on Locations to find out where to go in your county. You can also get help with a subpoena from the Help Center or from the court attorneys in the Part where your case is assigned. After you have filled out the forms, the clerk will present the subpoena to the judge for signature. You must then arrange for the service of the subpoena and the payment of a witness fee and, where appropriate, travel expenses for the person subpoenaed. You are responsible for paying these fees unless the judge who signs the subpoena specifically waives payment. Process Server or anyone who is 18 years of age or older and who is not a party to the case can serve the subpoena. A party cannot serve a subpoena themselves unless the judge who signs the subpoena orders that it can be served by the party. A copy of the subpoena must also be served on the party on the other side of the case, or on that party’s attorney if there is one.

A subpoena can be served any time before the hearing. However, a witness should be given a “reasonable” amount of time before he or she must appear. Generally, it is considered reasonable to serve the subpoena at least 5 days before the hearing date. This will allow the person subpoenaed to prepare the items you request or appear at the hearing

For more information on eviction service or serving eviction papers visit www.undisputedlegal.com or call (800) 774-6922 representatives are available Monday-Friday

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