Evictions

An eviction is a legal proceeding filed in court that a landlord can use to remove a tenant from a rental property. It commences when the landlord has an authorized individual serve the tenant with the notice of petition and the petition, the court papers that start an eviction lawsuit. A notice of petition is a document that has the time, date, and location of the eviction hearing. The petition notifies the tenant of the landlord's reason for evicting the tenant. The tenant must receive the notice of petition and the petition at least five days before the hearing date, but the hearing date cannot be later than twelve days after the tenant is served.

Can my landlord evict me without going to court?

Except in limited circumstances in which individuals have moved into an apartment without the consent of the landlord, the landlord cannot evict you with going to court. After your landlord commences the court proceeding, he or she must win the case and subsequently obtain a court order called a "Warrant of Eviction". Prior to obtaining a warrant of eviction, it is a violation of the law if your landlord:

  • Changes the locks
  • Turns off the utilities (electricity, gas, water)
  • Padlocks the door to your rental unit
  • Removes your furniture or other belongings
  • Prevents you from gaining entry to your house or apartment in any way

If your landlord does any of these things without a warrant of eviction call the police. Illegal eviction is a violation under N.Y. Real Prop. Law ยง 235 (McKinney). If the landlord refuses to let you back into your rental unit, you may want to get a court order telling the landlord how to conduct a proper eviction.

When can I be evicted?

If you have a written rental agreement with your landlord, you can only be evicted if:

  • The lease term expired, or
  • You owe the landlord overdue rent, or
  • You have violated the terms of the rental agreement.
It is the landlord's burden to prove in court that any of these are accurate. If you are a month-to- month tenant and you do not have a written rental agreement, you can be evicted if:
  • You were given a month's notice to move out, or
  • You owe the landlord overdue rent.

It is the landlord's burden to prove in court that any of these are accurate.

How to defend an eviction?

The reasons you may have to defend yourself from an eviction will vary depending upon the reasons for the action. The reasons for the eviction will be noted on the petition. If the reason is for non-payment, you can argue to the judge any of the following, if they are true:

  • You paid your rent;
  • Your Landlord did not demand the rent from you;
  • Your Landlord has refused to accept the rent from you. If this is your reason for nonpayment, bring the money to court;
  • You are holding the rent until your landlord makes repairs. If this is your reason for nonpayment, you have to show proof of the need for repair (i.e. an inspector's report, photos, etc.).

Keep in mind there are specific rules that your landlord has to follow in the eviction process. Mistakes made by the landlord in following the proper procedure in seeking your eviction can result in the case being dismissed by the judge.

What should I do after receiving petition papers?

It is always the best practice to go to court to defend yourself, even if your landlord says you don't need to go. If you are told that by your landlord, you should always call the court to confirm that you do not need to go to court. Most of the time, if you have been sued, you will have to go to court. You should go to court when:

  • You are served with eviction papers (the notice of petition and the petition);
  • You do not agree with the landlord's arguments in the court papers;
  • You would like to ask the judge for extra time to move out, if you don't think you have defense to the case;
  • You want to work out a deal with the landlord;
  • It is a nonpayment issue and you want to fight to reduce the amount of money that the landlord is requesting.
Some lawyers will advise you not to go to court if:
  • You are planning in moving out within 5 days of receiving the evictions papers; or
  • You have no defenses or
  • You were not personally served with the eviction papers.

But this can be a dangerous course of action. If you think your landlord has brought an eviction case against you, you should call the clerk's office to confirm whether that is true. Even if you have no defenses, you can sometimes negotiate more time to move out by going to court. Except in very limited circumstances - like you are planning to move out immediately - the best course of action is typically to go to court to submit your defense to the case. If you do not show up in court, it is possible that the landlord will get a warrant of eviction against you and might pursue attorney's fees against you, for which he or she could a separate judgment against you for attorney's fees.

What are some consequences of not going to court?

  • Your landlord will probably acquire a 72 hour (3-day) warrant of eviction.
  • Your landlord may obtain a money judgment (a court paper which says you one the landlord money) from the court to try to collect money from you.
What happens in court?
  • You are allowed to tell the judge the facts of the case from your perspective.
  • You will be allowed to show the judge any proof you brought to court (for example, that you have paid your rent; if the landlord is saying that you violated your lease in some other way, you might have proof to show you did not violate your lease.)
  • The judge may decide the case while you are present or ask you to come back another day for a hearing.
  • If the judge agrees with you the case will be dismissed, you do not have to move out.
  • If the judge agrees with your landlord, you must move out. You may be required to also pay the landlord any past due payments.
  • If the landlord wins, the judge will give the landlord a warrant of eviction which will allow you to be evicted by a law enforcement official or private actor in seventy-two hours if you refuse to move out.
  • If you feel the judge has been unfairly prejudicial to you (did not let you talk, did not allow you to assert a counterclaim, etc.) you can complain to the New York State Commission of Judicial Conduct. You can also attempt to file an appeal. Ask the court clerk how you might file an appeal and seek an emergency order preventing your eviction.
What is an actual eviction?

  • Subsequent to the issuance of a warrant of eviction, you will be given 72 hours (3 days) notice by a law enforcement officer (Police officer or sheriff) to move out.
  • The law enforcement officer will come back after the 72 hours expires (not including Saturdays, Sundays, or holidays).
  • If you have not moved out the law enforcement agent can remove your possessions and permit the landlord to change the locks.
  • If you are absent when the law enforcement agent returns, the landlord should safely secure your possessions, and will typically do so by placing them in a secure storage facility, with the intention of returning your possessions to you should you wish to claim them. For more information about the eviction process, see these links: