By Matthew Zwiren and John Flouskakos
A landlord seeking to initiate a legal action against a tenant, has, in general, two summary proceedings from which to choose. The New York State Real Property Actions and Proceedings Law (the “RPAPL”) provides the statutory scheme for these two summary proceedings.  The first of these summary proceedings, non-payment summary proceeding, is utilized when a landlord alleges that a tenant failed to pay their rent and is seeking the payment of the same. A holdover summary proceeding occurs when a landlord is seeking to obtain back possession of the property at issue for a number of reasons, including, but not limited to, the tenant failed to leave the rental property after the term of their agreement had ended, the tenant has engaged in nuisance, objectionable, or criminal behavior, or that the occupant of the property is not the tenant who signed the lease.
Before a non-payment summary proceeding can commence, a landlord must ask a tenant to pay any past-due rent. If this does not happen the tenant may use this as a viable defense in a non-payment summary proceeding. A landlord must demand the past due rent from the tenant through serving a fourteen (14) day rent demand on the tenant. A process server must serve the written fourteen (14) day rent demand on the tenant in the manner prescribed by the RPAPL. If a tenant fails to pay rent within fourteen days of receiving the written demand, a landlord may proceed against the tenant.
The commencement of holdover summary proceedings may differ based on the whether there is a written lease or not. When there is a written lease or agreement, the tenant must leave when the term of the lease ends. If the tenant remains on the property after the term of the lease ends, then the landlord may proceed against the tenant. The landlord can issue the tenant a Notice to Cure, giving the tenant a chance to pay any due rent, or a Notice to Quit, giving the tenant 10 days to vacate the premises. When there is no lease or agreement, tenancy is usually done on a month-to-month basis. To start a holdover proceeding, a landlord must provide a Notice of Termination to the tenant. The termination date in the Notice of Termination must be at least one (1) month from the date the notice was served and must be on the first day of the month in which termination is sought. For example, if a landlord wants a month-to-month tenant to vacate the property on September 1st, the landlord must serve the tenant the notice before August 1st. If the tenant refuses to leave, then a proceeding may begin.
For both types of summary proceedings, a landlord must file a pleading, which consists of a Notice of Petition and Petition. The Notice of Petition must inform the tenant of how to respond to the petition. The petition must be filed by an attorney or other agent of the landlord. It must contain the following:
“1. State the interest of the petitioner in the premises from which removal is sought.
2. State the respondent’s interest in the premises and his relationship to petitioner with regard thereto.
3. Describe the premises from which removal is sought.
4. State the facts upon which the special proceeding is based.
5. State the relief sought. The relief may include a judgment for rent due, and for a period of occupancy during which no rent is due, for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made.”
From there, a tenant will often respond to the petition, utilizing a number of defenses for their non-payment or holdover. If nothing has been resolved, the two parties will meet in court. If no settlement is reached during the process of litigation, the Judge will decide the case based on the evidence and testimony at hand.
If the court decides to evict the tenant, they will be served with a Warrant of Eviction, giving the tenant fourteen days to vacate the premises.
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