1. Jurisdiction of the Court...........................................................

4
A. Summary Proceedings.......................................................................................... 4
B. The Housing Part Determines Possession as Opposed to Title.......................4
C. Money Judgments................................................................................................. 4
(1) Additional Rent.............................................................................................. 5
(2) Accelerated Rent is not Recoverable.............................................................5
(3) Damages are not recoverable..........................................................................5
D. Interest, Costs, and Disbursements......................................................................6

2. Summary Proceedings..............................................................6
A. Non-Payment and Holdover Proceedings..............................................................6
B. The Difference between the award and entry of judgment............................7
(1) Payment of arrears prior to entry of judgment (non-payment proceedings)....7
(2) Attorneys fees are not recoverable where arrears are paid prior to the award
of judgment............................................................................................................. 7
C. Conditional limitation vs. condition subsequent (holdover proceedings)..............8

3. Predicate Notice......................................................................8
A. Non-Payment Proceedings (oral or three-day written demand)............................8
B. Holdover Proceedings........................................................................................... 9
(1) Month-to-Month Tenancy (One Month or Thirty-Day Notice).............................9
(2) Lease expired by its own terms (no notice required).....................................10
(3) Licensees and Squatters (Ten-Day notice to Quit vs. Tenants-at-Will (ThirtyDay Notice)........................................................................................................... 10
(4) Post-Foreclosures (Ten-Day, Ninety-Day or Longer Notice).............................10
(5) Tenancy by Sufferance (Thirty-Day Notice)....................................................11
(6) Notice to Terminate Due to Breach of Lease (Other than non-payment)........11
(7) Notice to Cure................................................................................................ 11
(8) Victims of Domestic Violence (Ten-Day Notice)..............................................12
(9) Section 8 Housing........................................................................................... 12
C. Yellowstone Injunctions....................................................................................... 13

4. Proper and Necessary Partieswho does the Landlord Sue?.....13

A.
B.
C.
D.
E.

Tenants............................................................................................................... 13
Subtenants......................................................................................................... 13
John and Jane Doesunnamed Respondents.....................................................14
Guarantors......................................................................................................... 14
Family Members.................................................................................................. 14

5. Notice of Petition and Petition................................................15

A. Notice of Petition................................................................................................ 15
B. The Petition........................................................................................................ 15
(1) Amending the Petition.................................................................................... 16

(2) Non-payment proceeding............................................................................... 16

(3) Holdover Proceeding...................................................................................... 16

6. Service Requirements5 and 12 Rule..................................16

A. Type of Service................................................................................................... 17
(1) Personal Delivery........................................................................................... 17
(2) Substituted Service........................................................................................ 17
(3) Conspicuous Place Service (Nail and Mail)..................................................17
B. Default Judgments.............................................................................................. 18

7. Answer, Counterclaims and Jury Trials.....................................18

A. Answer and Motions to Dismiss..........................................................................18
B. Counterclaims..................................................................................................... 19
(1) Procedural Matters......................................................................................... 19
(2) Tenants Safety............................................................................................... 19
C. Hearings and Jury Trial........................................................................................ 19

8. Affirmative Defenses..............................................................19
A. Implied Warranty of Habitability.........................................................................19
B. Illegal Apartments.............................................................................................. 20
(1) The Subject Premises does not have a rental permit.....................................20
(2) The subject premises lacks a Certificate of Occupancy..................................20
C. Acceptance of Rent following termination or expiration of the lease..................20
(1) Acceptance of another months rent prior to the commencement of as
summary proceeding............................................................................................ 20
(2) Acceptance of another months rent after the commencement of a summary
proceeding............................................................................................................ 21
(3) Acceptance of arrears following issuance of the judgment............................21
(4) Acceptance of rent for a month subsequent to issuance of the judgment
(future rent).......................................................................................................... 21
D. The tenant is no longer in possession of the subject premises..........................21
(1) The tenant vacates prior to commencement of a summary proceeding........21
(2) The tenant vacates after commencement of a summary proceeding............22
E. The petition asserts both non-payment and holdover claims.............................22
F. Actual and constructive evictions.......................................................................22
(1) Constructive eviction...................................................................................... 22
(2) Actual eviction................................................................................................ 22
(3) Self-help by the landlord prohibited (treble damages)...................................22
G. Breach of the covenant to repair (commercial leases only)...............................23
H. The landlord did not own the premises when the action was commenced........23
I. The landlord is divested of ownership during the summary proceeding.............23
J. Successor landlord.............................................................................................. 24
K. Automatic lease renewal provisions...................................................................24
L. Failure to exercise option to renew commercial lease.........................................24
M. Bankruptcy........................................................................................................ 24

N. Recording of the lease........................................................................................ 24

9. Additional Affirmative Defenses..............................................25

A. Premises rendered untenantable due to fire or the elements............................25
B. The tenant made mortgage payments on behalf of the landlord.......................25
C. The parties entered into a purchase agreement during the leasehold (merger) 25
D. Mutual mistake/frustration of purpose (recession of lease)................................25
E. Lease termination and forfeiture clause for a breach other than the non-payment
of rent....................................................................................................................... 25
F. Tenants in common............................................................................................. 25
G. Laches (stale rent)............................................................................................. 26
H. The tenant passes away during the tenancy......................................................26
I. Non-delivered written lease.................................................................................26
J. Landlord failed to provide rent receipts (residential lease).................................26
K. Condominiums (non-occupying owner)..............................................................26
L. Retaliatory eviction............................................................................................. 27
M. New York Soldiers and Sailors Civil Relief Act..................................................27
N. Waivable Defenses............................................................................................. 27

10. Security Deposit...................................................................27

A. Landlords Retention of the security deposit where the tenant does not take
possession................................................................................................................ 28
B. Unlawful conversion/commingling of the security deposit..................................28

11. Social Services Law (Spiegel Law)Public Assistance..........28

A. Violations and Unsafe building conditions..........................................................28
B. Adult home operators......................................................................................... 28

12. Courtroom Procedure and Protocol........................................29

A. Nassau Suffolk Law Services Committee, Inc.....................................................29
B. Call of the Calendar............................................................................................ 29
C. Stipulations of Settlement.................................................................................. 29
(1) RPAPL 746Pro Se Settlements...................................................................29
(2) A spouse may not bind another spouse to a settlement................................29
(3) Landlords Acceptance of Future Rent............................................................29
D. Hearings............................................................................................................. 30
(1) Role of the court............................................................................................. 30
(2) Evidentiary issues.......................................................................................... 30
E. Appeals............................................................................................................... 31

13. Stays, Injunctions and Orders to Show Cause.........................31

A. Orders to Show Cause (Stays and Vacating Judgments).....................................31
(1) 72-hour written notice.................................................................................... 31
(2) Grounds to vacate a default judgment and traverse hearings.......................32
(3) Undertaking as a condition for a stay.............................................................32
(4) Deciding the order to show cause..................................................................32

B. Vacating the warrant (RPAPL 749(3))................................................................32

1. JURISDICTION OF THE COURT

1) Specialized proceeding to resolve possession issues quickly
2) Supreme Court and County Court have concurrent jurisdiction
a) Supreme Court may remove a summary proceeding from the Housing Part to
join an existing Supreme Court action absent a demonstration of prejudice
where common issues of law and/or fact are raised
3) A proceeding to regain possession of residential or commercial property must be
commenced in:
a) Nassau/SuffolkDistrict Court situated within the Town where the property is
located
b) New York Citythe County in which the property is located
c) Outside NYCdesignated City Court or Justice Court depending on
municipality
A. SUMMARY PROCEEDINGS
1) Summary proceedingspecialized proceedings governed entirely by statute
and it is well established that there typically must be strict compliance with the
statutory requirements to give the court jurisdiction.
2) Two types of casesLL must bring the correct type of proceeding:
a) Nonpaymentpresupposes a valid LL-T relationship
b) Holdoverpresupposes a valid LL-T relationship does not exist OR the
relationship expired or was terminated
i) Various subcategorieshowever notwithstanding whether there was once
a LL and T relationship, the parties do not have such a relationship when
the holdover proceeding is commenced.
3) Petitioner in both types of proceedings seek to regain possession of the premises
4) Occupant/T must be in physical possession of the subject premises when the
summary proceeding is commencedotherwise the Housing Part is without
jurisdiction.
B. THE HOUSING PART DETERMINES POSSESSION AS OPPOSED TO
TITLE
1) Court has jurisdiction to determine possession
a) Parties retain their rights to litigate the issue of ownership in the Supreme
Court notwithstanding the outcome of the summary proceeding
2) Court has authority to terminate LL-T relationship by issuing a judgment of
possession and warrant of eviction (authorizes the eviction)
C. MONEY JUDGMENTS
1) Prevailing LL may be awarded a money judgment for unpaid rent and/or use and
occupancy
a) The Courts maximum jurisdictional dollar limit does not apply to summary
proceedings

b) Rentthe dollar amount the T agrees to pay for possession of a particular

property pursuant to a rental agreement
i) Non-payment proceedingLL seeks among other relief, unpaid rent
c) Use and Occupancyfair and reasonable value for occupying a residence or
commercial space in the absence of a rental agreement.
i) Holdover proceedingLL generally does not make a claim for rent other
than prior rent arrears because the tenancy either ended OR a LL T
relationship never existed
ii) LL may be entitled to U&O for the duration of the occupant
d) The terms rent and use and occupancy are not interchangeable
2) If LL wishes to enforce money judgment, LL must request a transcript of
judgment which may be filed with County Clerks office.
(1)ADDITIONAL RENT
1) Prevailing LL may be awarded a money judgment for items identified within a
written lease as added or additional rentincludes but not limited to,
utilities, late fees, and reasonable attorneys fees
2) Strictly enforced
a) If rental agreement provides that a prevailing LL is entitled to atty fees but
fails to identify the fees as additional or added rent, the fees may not be
awarded in summary proceedingLL would have to file plenary action
b) If the lease provides atty fees as additional rent and Petitioner fails to seek
the fees in the summary proceeding, LL is barred from recovering them in a
subsequent plenary action
3) Party must be the prevailing party to recover atty fees pursuant to rental
agreement
4) Expenses identified as additional or added rent that have not been incurred
at the time of the hearing are not recoverable
5) Late fee
a) Exorbitant late fee is unenforceable5% is exorbitant
b) May be recoverable where LL demonstrates it sustained a loss due to
lateness of Ts rent payment
6) RPL 234where a residential lease provides for the award of attorneys fees to
a prevailing LL due to Ts breach in any action or summary proceeding but
does not include similar relief for a prevailing tenant, the lease is deemed to
contain a reciprocal clause for the award of Ts attorneys fees
a) Court must resolve whether the rental agreements one-sided LL atty fee
provision is sufficiently broad to fall within RPL234
(2)ACCELERATED RENT IS NOT RECOVERABLE
1) Housing Part has SMJ over rent arrears, but not future rent
2) LL may not be awarded rent not yet due pursuant to a lease acceleration clause
a) LL may commence plenary action to enforce acceleration clause
(3)DAMAGES ARE NOT RECOVERABLE

1) Money damages, including property damage cannot be awarded.

a) LL reserves the right to commence a plenary action within the maximum
jurisdictional amount of the court
i) NYC--$25k
ii) Nassau/Suffolk--$15k
iii) Justice Courts--$3k
b) Res judicata may prohibit a subsequent claim for damages where the
disputed amount was or reasonably could have been raised in the summary
proceeding
D. INTEREST, COSTS, AND DISBURSEMENTS
1) Summary proceeding based upon default/breach of lease entitles prevailing LL to
prejudgment interest, costs and disbursements.
2) Pro se LL may recover filing fee when LL has counsel, filing fee may not be
recovered.
2. SUMMARY PROCEEDINGS
A NON-PAYMENT AND HOLDOVER PROCEEDINGS
1) Commencing correct type of proceeding important because if the wrong
proceeding is brought, it will be dismissed and LL will have to restart the process.
2) Nonpayment Proceedings
a) Primary relief sought is possession and a warrant of eviction, with or without
a money judgment
b) Must have valid LLT relationship when commenced.
c) LLT relationship continues until such time as the Court issues a final judgment
of possession in favor of the LL and a warrant of eviction
d) When T tenders payment of rent and the memo portion indicates the monies
are to be applied to a particular month, the earmarked funds may only be
applied to the month or months designated by the Tenant.
i) The acceptance of the check precludes the LL from recovering a
possessory judgment for a prior month in a summary proceeding
(1) LL may be permitted to seek a money judgment for unpaid rent from
prior months in a plenary action
3) Holdover Proceedings
a) LLT relationship was either terminated or expired at the time the summary
proceeding was commenced or such a relationship never existed
b) RPAPL 711 and 713, the following situations generally lend themselves to
holdover proceedings:
i) Where the parties had a rental agreement that expired on its own terms
and the T remains in possession w/o paying additional rent or use and
occupancy
ii) Where the parties had a rental agreement that was terminated due to a
breach of a material condition
iii) Where the parties had a month-to-month tenancy that was terminated by
the Landlord
3

iv) Where the owner and the occupant entered into a license agreement or
tenancy-at-will that the LL terminated or expired
v) Where the occupancy is a squatter having unlawfully entered into
possession of the property
vi) Where the occupant is a Tenant of a life tenant following the termination
of a life estate
vii) Proceedings to regain possession of post-foreclosed properties.
E. THE DIFFERENCE BETWEEN THE AWARD AND ENTRY OF
JUDGMENT
1) The award occurs when the Court directs that the LL is entitled to regain
possession of the subject premises. This is referred to as the award of a
possessory judgment.
2) Non-payment proceedingthe tenancy is not terminated until the court issues
the judgment and warrant of eviction
a) Prevailing LL must submit the appropriate paperwork to the Court Clerk which
may be done when LL chooses.
b) When LL is represented by counsel, atty must submit proposed judgment and
warrant for the Courts consideration and review
1

PAYMENT OF ARREARS PRIOR TO ENTRY OF JUDGMENT (NON-PAYMENT

PROCEEDINGS)
1) T may avoid the eviction and remain in possession by paying the amount
awarded prior to the Courts issuance of the judgment.
2) LL has no choice but to accept the payment which stays issuance of the
judgment and warrant, which ends further action in the summary proceeding
a) If LL refuses to accept payment prior to issuance of judgment, T may deposit
the monies w/ the clerk of the Court which stays the issuance of the
judgment and warrant
b) The amount tendered to LL will be reduced by the applicable Court and/or
statutory fees.
3) If the offer to pay the amount awarded is made after the judgment has been
issued, then LL may accept the payment and continue to evict T provided the
warrant was not already executed upon and there is no intent to reinstate the
tenancy
4) Holdover proceeding does not afford T a similar opportunity
a) Typically commenced for reasons other than unpaid rent and LL need not be
concerned that the proceeding will be dismissed because the occupant
offered the amount of money awarded
(4)ATTORNEYS FEES ARE NOT RECOVERABLE WHERE ARREARS
ARE PAID PRIOR TO THE AWARD OF JUDGMENT

1) Prevailing LL in a non-payment proceeding is not entitled to an award of

reasonable atty fees where T pays the full amount of rent arrears, including
permissible late fees, prior to the award of such fees
a) LL may seek to recoup its attys fees in a plenary action
F. CONDITIONAL LIMITATION VS. CONDITION SUBSEQUENT (HOLDOVER
PROCEEDINGS)
1) Conditional LimitationNo discretion for LL to terminate the rental agreement
but rather it automatically expires or is terminated upon the occurrence of a
triggering event
2) LL has a right to commence a holdover proceeding (as opposed to non-payment)
where the residential lease provided the non-payment of rent constituted a
default that terminated the rental agreement if not paid following proper service
of a Notice to Cure
3) Condition Subsequentlease provision that gives the LL the option of
terminating the lease agreement upon the occurrence of a certain event (i.e., if T
breaches lease, the lease expires at the discretion of LL)
3. PREDICATE NOTICE
1) LL must provide T w/ notice of claimed breach, default, and/or termination of the
tenancy prior to the commencement of a summary proceeding
2) Lease provision specifying the manner and upon whom the notice is to be served
will generally be enforced.
3) Certain de minimis defects in a predicate notice may be waived
a) i.e., if subject premises described improperly
A NON-PAYMENT PROCEEDINGS (ORAL OR THREE-DAY WRITTEN DEMAND)
1) LL must make a demand for the payment of unpaid rent prior to commencing a
non-payment proceeding
a) May be made orally or in writing at the discretion of the landlord
i) UNLESS the rental agreement provides otherwise
ii) Rental agreement may provide for additional notice as well
2) Oral DemandRPAPL 711(2)
a) Speaking to the tenant after the rent has become dono obligation for any
prior or follow-up writings from LL
b) Demand must be decisive and specify the period of time for which unpaid
rent is demanded
c) LL has burden of proving proper rent demand was made
3) Three-Day Written Demand
a) LL must wait at least three (3) days after written demand is served before
commencing a summary proceeding
b) Must comply w/ Fair Debt Collection Practices Act
i) Non-compliance does not result in dismissal of summary proceeding
c) Must be served in same manner as the Notice of Petition and Petition

i) May not be simply mailed to Tenant, but rather must be personally served
or left with a person o f suitable age and discretion or in a conspicuous
place following reasonable efforts to ascertain personal delivery.
(1) Follow-up mailings by regular and certified mail are required when
latter 2 agents are utilized.
d) Must state that T is required to pay the unpaid rent or, alternatively return
possession of the subject premises
i) Further specify the period that rent is claimed owed and the approx.. sum
of arrears
ii) Unless statute says otherwise, LL atty may make written demand on
behalf of LL
iii) Even where rental agreement provides that LL must make the rent
demand, the termination notice may be signed by an atty or other agent
on behalf of LL where T had knowledge from previous dealings with the
agent that he or she is authorized to act on behalf of landlord.
e) Exception: manufactured home parks and mobile homesowner must
provide T, who may be owner of mobile home, a Thirty-Day Written Demand
which must be formally served
4) If demand is made prior to rent being late, then demand is defective and upon
motion by T, the proceeding will be dismissed
5) Defense of an improper rent demand or lack of service thereof is waived unless
waived.
G. HOLDOVER PROCEEDINGS
1

MONTH-TO-MONTH TENANCY (ONE MONTH OR THIRTY-DAY NOTICE)

1) LL must prove at the time the proceeding was commenced T was in possession
of the subject premises beyond the expiration or termination of the tenancy.
2) Where the tenancy is month-to-month, LL is required to provide T with at least 1
months notice
a) Parties may enter into month-to-month agreement at their discretion
i) need not be in writing
ii) may result by operation of law (such as when a rental agreement of longer
than 1 month expires and T remains in possession w/ LL permission and
pays for such occupation w/o entering into a new rental agreement
b) Statute of Frauds does not apply because tenancy can be performed within
one year
c) T seeking to terminate month to month tenancy must provide LL w/ 1
months notice
i) T failure to provide proper notice prior to vacating may result in T being
liable for 1 additional month of rent
(1) Outside NYC: may be oral, overnight delivery, certified mail, or regular
mail
(2) NYC: Thirty-Day Written Notice served in the same manner as notice of
Petition and Petition.

3) Notice must be timely, definite and unequivocal.

a) Must terminate tenancy on the final day of the rental term or will be defective
b) Termination notice signed by counsel that fails to specify counsels authority
to issue the predicate notice and where counsels authority to act on behalf of
Petitioner was not previously known to Respondent may be defective.
c) LL may not amend its notice to terminate following the commencement of a
summary proceeding
i) If a defect in predicate notice could not have materially misled or
confused T or hindered the preparation of the defense then defect may be
overlooked
(5)LEASE EXPIRED BY ITS OWN TERMS (NO NOTICE REQUIRED)
1) Predicate Notice not required to terminate a rental agreement for a definite term
that expires on a date certain
2) When T holds over following expiration of a rental agreement of longer than 1
month w/o paying rent for the additional time, LL need not provide predicate
notice
3) LL may not hold T to a new rental term or renewal unless there is a provision to
the contrary in expired rental agreement
4) In addition to judgment of possession, warrant of eviction, unpaid rent, and
additional rent, L may further seek use and occupancy for the time T remains in
possession w/o LL permission
(6)LICENSEES AND SQUATTERS (TEN-DAY NOTICE TO QUIT VS.
TENANTS-AT-WILL (THIRTY-DAY NOTICE)
1) If occupant is a licensee or squatter, LLT relationship does not exist
a) RPAPL 735 permits a summary proceeding for possession provided the
occupant is served with a ten-day notice to quit
b) licenseesomeone who was entitled to possession of the property at the
time of the license and the license has expired, been revoked, or the
occupant is no longer entitled to possession
2) Tenant-at-will is an individual who took lawful possession for an undetermined
duration of time.
a) Must be provide 30-day written notice, not necessarily one month, prior to
commencement of summary proceeding.
i) 30 days need not end on a particular date, only 30 days following service
of notice. Termination must be formally served.
3) Distinction: Where the occupant has complete access to all or a portion of the
property, the occupant is more likely to be considered a tenant-at-will
notwithstanding the absence of an agreement to pay rent.
4) Notice to Quit must denominate the parties relationship and relief sought
a) Failure to include a date certain to vacate the premises is not a fatal defect

(7)POST-FORECLOSURES (TEN-DAY, NINETY-DAY OR LONGER

NOTICE)
1) Protecting Tenants at Foreclosure Act (PTFA) requires new owner to provide a
bona fide Tenant w/ a minimum of ninety-days written notice prior to the
commencement of a holdover proceeding.
a) A bona fide tenant is not the former owner or child/spouse/parent of the
mortgagor. Tenancy must have be an arms-length transaction and rent
may not be substantially less than the fair market value.
2) If tenant has a written lease, T is entitled to remain in possession of the
foreclosed property for the 90 day notice period or the remainder of the lease,
whichever is greater, except when the subsequent purchaser intends to occupy
the property. T is a necessary party to the foreclosure actionif T is not named
in the foreclosure action, T may remain in possession of the subject premises for
the remainder of the lease.
3) A month-to-month tenant is not a necessary party to the foreclosure.
4) When foreclosed premises contains multiple families living independently in
separate units, the owner may not maintain a single proceeding to recover
possession of the entire propertymust be separate summary proceedings to
recoup each independent living area.
5) Successor owner has the burden of demonstrating
a) Compliance w/ the relevant statutory notice provisions
b) The occupant is not a bona fide Tenant
6) RPAPL 713(5) provides that a certified copy of the deed must be exhibited to
the occupants prior to the commencement of the summary proceeding.
7) Foreign (out of state) banks may commence summary proceedings to enforce
obligations under those mortgages.
(8)TENANCY BY SUFFERANCE (THIRTY-DAY NOTICE)
1) Hybrid situation where the occupant previously had lawful possession but
refuses to vacate the premises following termination of the primary Ts
possessory interest
a) May result when a Subtenant fails to leave after T vacates due to termination
of Ts rental agreement
2) Not a tenancyclaim by the occupant for adverse possession
3) Owner must provide a tenant by sufferance w/ 30-day notice prior to
commencing a holdover proceeding
a) 30 days need not end on any particular date, only 30 days following service
of the notice
(9)NOTICE TO TERMINATE DUE TO BREACH OF LEASE (OTHER
THAN NON-PAYMENT)
1) Notice to Terminate a rental agreement based upon a breach other than the nonpayment of rent requires a predicate notice that sates the consequences of
failing to vacate by the termination date.

2) LL may not file a summary proceeding until after the date set forth in the notice
to terminate
3) Notice to terminate must:
a) Unequivocally and unambiguously state LLs basis for recovering possession
of the subject premises
b) Advise T of the date of termination
c) If the Notice is in writing, it must be signed by LL (or atty or agent known by T
or included in lease) and
d) Notify T that a summary eviction proceeding will be commenced if T does not
vacate by termination date.
e) Should also identify the lease provisions claimed to have been breached
4) Not required when lease expires by its own terms
(10)

NOTICE TO CURE

1) Notice to Cure provides notice that T is in default of a lease obligation that must
be corrected during a cure period or summary eviction proceeding will be
commenced.
2) Must be served as described in renal agreement or if not specified by personal
delivery or mail
3) NYCmandatory post-award cure period of 10 days during with T may cure
breach and avoid eviction.
4) Notice to cure must articulate sufficient facts to establish basis of the
termination and the corrective action required.
(11)

VICTIMS OF DOMESTIC VIOLENCE (TEN-DAY NOTICE)

1) RPL227-c sets forth protocol for terminating tenancy where an order of

protection has been issued
2) At any time while the order of protection is in effect, T may terminate tenancy
after giving LL and all co-T a ten-day notice.
a) Issuing court must entertain the application at any time the order of
protection remains in effect even when the underlying domestic violence
dispute has been resolved.
3) T must demonstrate that notwithstanding the order of protection
a) A substantial risk of physical and/or emotional harm to the T and/or his/her
children will continue to persist if they remain in the subject premises and
b) Ts request for early termination of the rental agreement was refused by LL
4) If application is granted, court must terminate tenancy btwn 30 and 150 days
following due date of next rental payment.
5) Court must also condition early termination on the payment of rent due as of the
termination date with credit for any prepayments.
6) A lease provision waiving Ts rights of the benefits under RPL 227-c is void as
against public policy.
(12)

SECTION 8 HOUSING

1) Federally subsidized renal programsLL & S8T enter into lease agreement
a) Housing Assistance Payment (HAP) K is executed between LL and the Public
Housing Agency (PHA) that
i) Authorizes the PHA to send subsidized rent payments to LL and
ii) Binds the parties to the regulations governing S8 program
2) T is only responsible for Ts portion of the rent
a) Limited to the greater of 30% of familys monthly adjusted income, 10% of
familys income or other amount determined by a public agency.
3) When the lease expires, tenancy entered into after 1995 may be terminated in
the same manner as other tenanciesif the parties agree to continue the
leasehold, a month to month tenancy will be created
4) Termination notice must be served on the PHA as well as the tenantallows the
agency ample opportunity to withhold payments, monitor LLs conduct
5) S8T may not be evicted due to failure to pay late charges and/or atty fees
6) S8T may be responsible for paying the full amount of use and occupancy for
holding over following termination of the S8 agreement
H. YELLOWSTONE INJUNCTIONS
1) Commercial leaseWhere T receives a Notice of Default or Notice to Cure that
threatens to terminate the lease if the alleged defect is not corrected by a
certain date, T may seek to toll the cure period by obtaining a Yellowstone
Injunction.
a) Application for Yellowstone injunction is typically made by T in conjunction w/
a declaratory judgment action in Supreme Court prior to LL commencement
of a summary proceeding
2) Request for a Yellowstone injunction must be made before the rental agreement
terminates, whether upon its own expiration or due to the passage of the cure
period set forth in LLs notice
3) Yellowstone injunction is intended to maintain the status quo during the
pendency of the dispute between LL and T.
4) To obtain a Yellowstone injunction, commercial T must demonstrate that it
a) Holds a commercial lease
b) Received a Notice of Default, Notice to Cure or other indicator that the rental
agreement may be terminated
c) That the request for the injunction was made prior to the termination of the
rental agreement and
d) T is prepared and able to cure the breach by any means short of vacating the
premises.
5) Courts will typically grant the application with far less than the showing
normally required for the grant of preliminary injunctive relief
a) Court may not rewrite the lease by extending the deadline for the
completion of agreed upon repairs
6) Yellowstone injunctions may be granted in a residential lease where the
nonpayment of rent is the only issue and the lease includes a provision
permitting LL to terminate tenancy due to non-payment of rent following service
of a Notice to Cure

10

4. PROPER AND NECESSARY PARTIESWHO DOES THE LANDLORD

SUE?
1) LL must name each proper and necessary partyall known T
A TENANTS
1) LL must name each and every T
a) T jointly and severally liable for a money judgment in favor of LL but LL may
not pick and choose against which T to commence a summary proceeding,
even when only some of the occupants pay rent
b) Only those persons named in the proceeding may appear on warrant of
eviction
i) adult children of T need not be named unless they have an independent
possessory right to premises.
ii) Minor children neither need be named in summary proceeding nor appear
on the warrant
I. SUBTENANTS
1) Subtenant is a proper but not necessary partyLL may commence a summary
proceeding against subT provided all T are also named
2) LL may not commence a summary proceeding directly against a subtenant
without also naming T because the LL is not in privity with a subtenant
3) When LL prevails against T, the subtenancy is automatically terminated
a) only those subtenants named in the summary proceeding may be evicted
b) if summary proceeding is dismissed against T, proceeding will also be
dismissed against subT
4) Judgment of possession and warrant of eviction (w/o money judgment) is
typically relief sought against subtenants
5) T may commence summary proceeding directly against a subtenant
6) T and subT may also assert claims against one another based on their
agreements regarding damages (plenary action)
7) LL prevails against T but subT refuses to leave
a) possible establishment of tenancy by sufferance
i) if not established, LL may have to commence an ejectment proceeding
8) Assignment of lease
a) summary proceeding may not be maintained against T who assigns (not
sublets) the lease and all obligations to a third party prior to the
commencement of a summary proceeding. LL may only proceed against
assignee.
J. JOHN AND JANE DOESUNNAMED RESPONDENTS
1) LL will typically identify unknown individuals as John Doe and Jane Doe service
must be made to each John/Jane Doe in same manner as a named individual
2) LL must move to amend the caption to include the proper name of an occupant
identified as a Doe if the individuals name is learned

11

a) failure may result in dismissal of proceeding where it can be demonstrated

the persons proper name was disclosed prior to the commencement of the
summary proceeding
K. GUARANTORS
1) Summary proceeding may not be maintained against the guarantor of a rental
agreement w/o LLT relationship
2) LL may commence a plenary action to enforce the guaranty
3) Even if guarantor consents to jurisdiction, summary proceeding will be dismissed
against guarantor
L. FAMILY MEMBERS
1) Family member may not evict another family member
2) Where occupancy arises out of the familial relationship such as an adult child
who has lived in the family home since birth, summary proceedings may not be
maintained
a) No LLT relationship upon which a summary proceeding may be based
3) Owner may commence an ejectment proceeding in an appropriate court
a) May be commenced either by owner or occupant but unlike a summary
proceeding, monetary damages, other than rent or use and occupancy may
be awarded
b) Summary proceeding is permitted to evict a family member whose occupancy
is not the result of the familial relationship.
i) i.e., parent ad adult child enter into rental agreement
4) Family issues often also cross with other courts (family, criminal, etc.)-- Housing
Part will not modify or supersede a prior Courts Order
5) Where premises has multiple owners, each owner may independently enter into
a binding rental agreement w/o consent of the other, and the agreement is
enforceable and may not be prematurely terminated by the other absent a
breach of the lease or other grounds based in law
5. NOTICE OF PETITION AND PETITION
Regardless of whether the action is a nonpayment or holdover proceeding, the
action commences by filing with the court the notice of petition and petition and
by paying the filing fee.
A NOTICE OF PETITION
1) Provides T or occupant (Respondent) with notice of the proceeding and the relief
sought
2) Must provide Respondent with
a) time and location of the hearing
b) notice that the failure to assert and establish a defense at the hearing may
preclude Respondent from asserting the defense or related claim in any other
proceeding and
12

c) a description of the premises for venue purposes

d) NYC must also include:
i) the action is returnable within 5 days of service
ii) if Respondent answers the Petition, a hearing will be scheduled between 3
and 8 days from the answer
iii) if Respondent fails to answer or appear, the Court may enter a judgment
against Respondent and stay issuance of the warrant of eviction for a
maximum of 10 days
3) Only judge, atty, or Clerk (for pro se Petitioners) may issue a Notice of Petition
a) NYC: Atty may not issue Notice of Petition
M. THE PETITION
1) Expands Notice of Petition by asserting specific allegations
2) Must include:
a) Petitioners interest in the subject premises
b) Respondents inters tint he subject premises and relationship to Petitioner
c) description of the subject premises from which removal is sought
d) sufficient facts upon which the proceeding is based and
e) statement of the award or relief sought from the Court
f) If S8T or in possession b/c of govt sponsored program
i) Must describe Ts regulatory status, because the status may determine
the scope of Ts rights.
g) Failure to include any of these allegations may result in Petition being
dismissed.
3) Typically provides that Petitioner is seeking
a) final judgment of possession (lawful possession of the premises)
b) warrant of eviction
c) if a monetary award for unpaid rent is sought, a non-payment Petition must
state the amount claimed and the period of time from which the claim arose.
d) Holdover where a monetary award is sought, must state the amount of
unpaid rent sought prior to the expiration or termination of the lease plus the
fair value for the continued use and occupancy of the subject premises.
4) Petition must be verified by a person authorized pursuant to RPAPL 721 or
Petitioners attorney.
a) Attys verification may delay proceedings in the event of default
1

AMENDING THE PETITION

1) If both Petitioner and Respondent are present, Petitioner may seek to amend
Petition to include additional rent that has since become due
2) Petition may be amended orally as of right without advance notice to
Respondent however, request to amend must be timely.
3) Amendments w/ respect to parties names and spelling are routinely granted.
a) Request to substitute the name of an individual in possession but who was
not served or listed as a Doe is not permitted unless the individual to be
added consents to the jurisdiction of the court.

13

4) May also be granted to correct a mistake in the address or description of the

property, either pre- or post-judgment provided there is no prejudice to
Respondent.
(13)

NON-PAYMENT PROCEEDING

1) Petition must also allege that a rent demand was made, either verbal and/or
written
2) If written, LL must state manner of service or attach affidavit of service to
Petition
a) If affidavit omitted, LL may cure defect by attaching the affidavit of service to
its opposition to Ts motion to dismiss
3) If oral, simply alleging with the Petition that an oral demand was made is
sufficient
(14)

HOLDOVER PROCEEDING

1) Petition must allege that the predicate notice was timely provided to
Respondent.
a) Petitioner should attach a copy of the Notice and proof of service
i) failure to do so is not a jurisdictional defect.
6. SERVICE REQUIREMENTS5 AND 12 RULE
1) Petitioners responsibility to have Notice of Petition and Petition served upon
each Respondent.
2) Even when Respondent fails to appear and is in default, Petitioner must
demonstrate that service was proper.
a) When Petitioner fails to comply with 1 or more of the service requirements,
Petition will be dismissed without prejudice (another summary proceeding
may be commenced)
3) In NY 3 ways to serve the Notice of Petition and Petition
a) personal delivery upon the Respondent
b) substituted service
c) conspicuous place service (nail and mail)
4) Typically Petitioner will retain a licensed process server, however any individual
over 18 and not a party to the proceeding may serve the papers
5) Service must be no fewer than 5 days but no more than 12 days prior to
the hearing date (except as provided for non-payment proceedings in NYC)
a) Court does not count the date service is completed, but counts the day the
proceeding is to be heard. If the final day is a Saturday, Sunday or public
holiday, then the time to complete service is extended to the next business
day.
b) Service may not be made on a Sunday or other religious observance day.
A TYPE OF SERVICE

14

PERSONAL DELIVERY
1) Preferred method of serviceneed not be personally served at the subject
premises.
2) Service is considered complete when the papers are handed, or personally
delivered to Respondent
a) Process server must file proof of service with the Clerk of the Court in the
form of a sworn affidavit of service within 3 days of service
i) Failure to file affidavit of service may result in dismissal
b) process server must utilize reasonable efforts to serve each Respondent at
a time and place when the occupant is expected to be present
(15)

SUBSTITUTED SERVICE

1) Considered complete when the affidavit of service is filed with the Clerk of the
Court.
2) Process server may leave the papers with the individual who answers the door
provided that person is of an appropriate age and has the appropriate judgment
to accept the papers.
3) Process server must leave the same number of copies of the Notice of Petition
and Petition with a person of suitable age and discretion as there are named
Respondents.
a) Process server must further mail 2 copies to each Respondent at the subject
premises the following business day1 via certified mail and 1 via regular
mail.
b) To complete service, process server must file w/ the court a sworn affidavit of
service within 3 days of the mailing.
(16)

CONSPICUOUS PLACE SERVICE (NAIL AND MAIL)

1) If on the initial attempt of service no one answers the door, then the process
server must return at least 1 additional time during a different time of day to
attempt service. If on second visit there is still no answer and Petitioner is
willing to forego a money judgment if T fails to appear in Court, then process
server may fasten the papers (1 copy per Respondent) to the door or slide them
beneath the entrance of the residence.
a) Process server must further mail 2 copies to each Respondent at the subject
premises the following business day1 via certified mail and 1 via regular
mail.
b) To complete service, process server must file w/ the court a sworn affidavit of
efforts and attempts to effectuate service within 3 days of the mailing.
N. DEFAULT JUDGMENTS
1) Respondents failure to appear on hearing date may result in default judgment in
favor of LLjudgment and possession and warrant of eviction where service was
proper.

15

2) Petitioner may also be entitled to a money judgment for unpaid rent, added rent
and/or use and occupancy sufficiently demonstrated.
3) To obtain a money judgment following a default where nail and mail service was
utilized, process server must satisfy heightened due diligence standard
a) left to discretion of Court but routinely interpreted to require a minimum of 3
attempts at service over 2 days at different times of the day and not on
Sunday.
4) Purpose of service requirements is to insure adequate notice of the claims
7. ANSWER, COUNTERCLAIMS AND JURY TRIALS
1) Respondent may formally respond to the Petition at or before the hearing, either
orally or in writing, by denying all or a portion of the allegations and asserting
affirmative defenses.
2) The answer need not be verified.
3) Purpose of answering is
a) frame the issues before the court
b) preserve the right of appeal and
c) preserve the right to assert claims related in another action
A ANSWER AND MOTIONS TO DISMISS
1) Respondent may assert any affirmative defense, whether base din law or equity.
However there is no obligation to formally respond to the Petition.
2) Failure to submit an answer does not preclude Respondent from asserting
defenses at the hearing.
3) Exception: if Petition is served at least 8 days before the return datePetitioner
may require that T follows an Answer at least 3 days prior to the hearing
4) NYC Non-payment Proceeding
a) T must answer Petition w/I 5 days of service. The Clerk thereafter assigns a
date between 3 and 8 days for the hearing.
5) Respondent may move to dismiss the proceedingtypically based upon alleged
defects in service and/or Notice of Petition and Petition
6) Denial of Respondents motion to dismiss and/or for summary judgment is
typically not an adjudication on the merits.
7) Right to make a pre-hearing motion may be waived if untimely made
O. COUNTERCLAIMS
1

PROCEDURAL MATTERS
1) Petitioner may not be warded damages in a summary proceeding but
Respondent may assert counterclaims for damages
2) Equitable counterclaims are not permitted.
3) Courts max jurisdictional dollar amount in civil actions does not apply to either
the Petitioners claim for rent or the Respondents counterclaims w/ the
exception of counterclaims asserted in the Justice Courts (limited to $3,000)

16

4) Respondents counterclaims are not limited to the time period for which unpaid
rent is sought.
5) Court may dismiss and sever counterclaims without prejudice to file a plenary
action
6) Leave provision barring counterclaims will generally be enforced unless the
counterclaims are inextricably intertwined with Petitioners claims for unpaid
rent and/or use and occupancy
(17)

TENANTS SAFETY

1) LL must only take minimal precautions to protect T from foreseeable harm,

including foreseeable criminal conduct by a third person.
2) LL has no duty to clean up or otherwise make the premises secure during a
storm.
a) LLs duty to take reasonable measures to remedy the dangerous condition
caused b the storm does not resume until a reasonable time after the storm
has ended.
b) Where LL voluntarily elects to do so, LL is responsible for resulting damages
where the cleanup efforts make the area more dangerous
P. HEARINGS AND JURY TRIAL
1) Formal discovery is generally not applicable, but may be obtained w/ permission
of the court
2) Parties may subpoena witnesses and business records.
a) Subpoenas seeking the records of a governmental agency, such as a police
report or proof of payment to the Petitioner, must be So Ordered by the
Court and may be provided on as little as 1 day notice to the agency.
3) Either party may demand the case be tried before a jury *unusual)
a) If Petitioner requests, demand must be made until the time of the hearing
provided the applicable jury fee is paid, or the demand may be deemed
waived
b) Respondents demand for jury trial must be made at the time of the Answer.
8. AFFIRMATIVE DEFENSES
A IMPLIED WARRANTY OF HABITABILITY
1) Residential non-payment proceedings
2) Not intended to be a complete defenseT seeks an abatement or offset of all or
a portion of unpaid rent due to the conditions of the subject premises
3) 3 requirements of the subject premises:
a) fit for human habitation
b) fit for the uses reasonably intended by the parties and
c) the occupants may not by subjected to any conditions that would be
dangerous, hazardous, or detrimental to the life or safety of others.

17

4) If any of the above conditions are not satisfied, then T is entitled to an

abatement of all or a portion of the rent provided LL was given notice w/I a
reasonable period of time
5) May not be waived in rental agreement
6) Limited to the essential functions of the subject premises.
7) Defense is not intended for the occasional rodent that appears or the use of
amenities and services.
Q. ILLEGAL APARTMENTS
1) Outside NYC, generally no bar on the collection of rent by LL leasing an illegal
apartment
2) Village ordinance conditioning the issuance or renewal of a rental permit upon
the owners forced consent to a warrantless inspection of the premises has been
held unconstitutional
1

THE SUBJECT PREMISES DOES NOT HAVE A RENTAL PERMIT

1) LL may be awarded unpaid rent provided a proper rent demand was made
2) LL may not always be entitled to a money judgment
a) if local statute makes it unlawful to collect rent for an illegal department
b) if illegal apartment is in a multiple dwelling within a city, town or village with
more than 325k residents LL is prohibited from recovering rent and/or use
and occupancy
c) if LL misrepresents the apartment as legal
(18) THE SUBJECT PREMISES LACKS A CERTIFICATE OF
OCCUPANCY
1) Lack of CO does not bar the recovery of rent
R. ACCEPTANCE OF RENT FOLLOWING TERMINATION OR EXPIRATION OF
THE LEASE

ACCEPTANCE OF ANOTHER MONTHS RENT PRIOR TO THE COMMENCEMENT

OF AS SUMMARY PROCEEDING
1) LL may continue to accept rent until the termination date set forth in the
termination notice.
2) LL acceptance of rent for a period subsequent to the termination notice or
expiration of the rental agreement but prior to the filing of the summary
proceeding reestablishes the tenancy on a month-to-month basis.
a) termination notice is voided and summary proceeding will be dismissed
(19) ACCEPTANCE OF ANOTHER MONTHS RENT AFTER THE
COMMENCEMENT OF A SUMMARY PROCEEDING

18

1) acceptance of rent for a term subsequent to the noticed termination date after a
holdover proceeding has been commenced neither voids the termination notice
nor creates a new tenancypayment is considered use and occupancy which LL
may receive without invalidating the predicate notice.
(20) ACCEPTANCE OF ARREARS FOLLOWING ISSUANCE OF THE
JUDGMENT
1) Payment of rent arrears for a period prior to the issuance of the judgment may
be accepted post-judgment, and absent a clear intent to revive the tenancy, the
acceptance of the payment neither reinstates the LLT relationship nor constitutes
a basis to vacate the judgment or warrant of eviction.
(21) ACCEPTANCE OF RENT FOR A MONTH SUBSEQUENT TO
ISSUANCE OF THE JUDGMENT (FUTURE RENT)
1) Depends on the type of leasehold
2) Residential
a) acceptance of rent for a period following issuance of the judgment generally
invalidates the judgment of possession and warrant of eviction.
i) LL would have to commence a new summary proceeding to regain
possession on proper notice
ii) Where it is agreed that possession is to be awarded to LL, arrears are
owed, and further that future payment are first to be applied to the
current months rent, LL may apply the post-judgment payments to
months subsequent to the issuance of the judgment and warrant
3) Commercial
a) LL may accept and corporate T has obligation to pay rent for the time it
remains in possession following issuance of the judgment.
b) LL judgment and warrant would stand following payment except where LL
intended to revive the tenancy
S. THE TENANT IS NO LONGER IN POSSESSION OF THE SUBJECT
PREMISES
1

THE TENANT VACATES PRIOR TO COMMENCEMENT OF A SUMMARY

PROCEEDING

1) If T vacates prior to LL commencing summary proceeding, Petition must be

dismissed because a summary proceeding may not be maintained where
possession is not at issue.
2) When T abandons premises w/o a surrender, there is no privity of estate
between the partiesLL may pursue remedies based on principles of contract in
a plenary action but may not seek same in the speedier summary proceeding in
LLT court

19

3) Surrender by operation of Law (implicit surrender) occurs there the parties act in
a manner inconsistent w/ LLT relationship which indicates their intent to deem
the lease terminated.
4) Surrender of possession bars the award of rent for any month subsequent to the
surrender.
(22) THE TENANT VACATES AFTER COMMENCEMENT OF A
SUMMARY PROCEEDING
1) When T vacates after summary proceeding has been commenced, summary
proceeding may continue
2) LLT relationship deemed terminated upon vacating, and bars the award of rent or
use and occupancy for a month beyond the surrender.
3) Exception: rental agreement contains a survival clause that permits LL to seek
balance of rent due following surrender in a plenary action
T. THE PETITION ASSERTS BOTH NON-PAYMENT AND HOLDOVER CLAIMS
1) Petitioner may allege both non-payment and holdover claims within the same
Petition where the renal agreement includes a provision that the lease expires or
is terminated upon non-payment of rent.
U. ACTUAL AND CONSTRUCTIVE EVICTIONS
1

CONSTRUCTIVE EVICTION
1) Occurs when LL commits a wrongful act or an omission that substantially denies
Ts beneficial use and enjoyment of all or a portion of the subject premises.
2) T must demonstrate that it physically vacated those portions of the subject
premises claimed to have been denied within a reasonable period of time.
a) T need not abandon the entire premises, only the affected areas
3) T that has been constructively evicted is entitled to an abatement of rent (not an
entire suspension of rent)
(23)

ACTUAL EVICTION

1) T is wrongfully ousted from physical possession of all or a portion of the subject

premises such as where LL changes the locks or bars T from entering the
premises
2) trivial intrusion or interference with Ts use and enjoyment of commercial
premise is not an eviction
a) Whether the taking is de minimis is determined on a case by case basis.
3) Where T withholds rent following a partial actual eviction, T may not assert a
claim for damages against LL
4) If T elects to proceed w/ its affirmative claim for damages, T waives the right to
raise the unlawful eviction as a defense

20

5) T wrongfully ousted from a parcel of property may commence a proceeding in

the Housing Part by Order to Show Cause to be restored to toe subject premise
and, if necessary, direct the Sheriff or Marshal to remove and change the locks.
6) Court may not award T (Petitioner) money damages
(24) SELF-HELP BY THE LANDLORD PROHIBITED (TREBLE
DAMAGES)
1) Only the Sheriff or Marshal may perform or authorize the performance of an
eviction pursuant to an Order of the Court
2) LL may not resort to self-help
a) If LL self-help results in T being evicted from the property, T is entitled to
treble damages in a plenary action.
3) Summary proceeding to be restored to possession is improper when the
individual claiming the unlawful eviction was neither in actual possession nor
constructive possession at the time of the unlawful entry.
4) If LL is awarded possessory judgment and warrant of eviction from the Court but
nonetheless elects to utilize self-help, Ts recourse is to commence a new
proceeding to be restored to the subject premises.
a) T may not seek such relief by way of Order to Show Cause in LL summary
proceeding.
5) Commercial: LL may avail itself of a lease provision permitting reentry upon a
breach by T provided the reentry is done in a reasonable manner and without
force
V. BREACH OF THE COVENANT TO REPAIR (COMMERCIAL LEASES ONLY)
1) Absent an express lease provision, commercial T must continue to pay rent even
when LL breaches the rental agreement by failing to make required repairs.
2) Covenant to pay rent is independent of the covenant to make repairs as long as
T remains in possession.
W. THE LANDLORD DID NOT OWN THE PREMISES WHEN THE ACTION WAS
COMMENCED
1) Ownership is not required to maintain a summary proceeding pursuant to RPAPL
721
2) T may assert LL is not the owner or lacks a superior interest in the subject
premises as an affirmative defense
a) T may not affirmatively claim it is the owner in a summary proceeding.
b) Application of the defense is further limited by estoppel to deny LLs title

X. THE LANDLORD IS DIVESTED OF OWNERSHIP DURING THE SUMMARY

PROCEEDING

21

1) Former LL may seek unpaid rent and added rent until title was transferred, but is
not entitled to judgment of possession or warrant of eviction b/c possession is no
longer at issue.
a) Housing Part may transfer the summary proceeding to the Civil Part of the
Court and convert the matter into a plenary action for money damages
b) Petition would be deemed the Complaint and T would be afforded no fewer
than 20 days to formally interpose an Answer. Monetary relief limited to use
and occupancy until LL was divested of ownership
i) If transferred, then subject to courts subject matter jurisdiction over the
dispute where the amount claimed exceeds the threshold.
ii) If LL voluntarily agrees to reduce the amount to within Courts
jurisdictional dollar limit, then LL may not seek the balance in another
forum
Y. SUCCESSOR LANDLORD
1) Successor LL acquires premises subject to the terms and conditions of the
existing tenancy, including any waiver of rights, where successor LL has actual
or constructive knowledge of the leasehold.
2) Successor LL may be further bound by former LLs oral waiver of a lease
provision
3) Ts possession of the subject premises at the time of the purchase/transfer
constitutes constructive notice
4) Successor LL is deemed to have knowledge of the security deposit tendered to
prior LL where subject premises is a residential dwelling containing 6 or more
units
Z. AUTOMATIC LEASE RENEWAL PROVISIONS
1) Lease provision that states a rental agreement automatically renews upon
expiration is not enforceable unless LL provides T w/ a written reminder of the
renewal notice prior to the expiration of the lease.
AA.

FAILURE TO EXERCISE OPTION TO RENEW COMMERCIAL LEASE

1) Commercial Ts failure to timely exercise a lease renewal provision may be

forgiven , in equity, where
a) the failure to renew is due to inadvertence, negligence, or honest mistake
b) the failure to renew will result in a forfeiture by T
c) there is no prejudice to LL
2) Forfeiture may occur when T makes substantial improvements to the premises
with the intention of renewing the lease that will result in a substantial loss if
lease is not renewed.
AB.

BANKRUPTCY

22

1) Summary proceeding commenced after T files for bankruptcy is improper and

will be dismissed
2) When summary proceeding precedes the bankruptcy filing the proceeding will be
stayed
3) If bankruptcy filing occurs after the judgment and warrant of eviction have been
issuedthe eviction may proceed because the automatic bankruptcy stay is not
applicable following a possessory judgment.
4) Where T files for bankruptcy during summary proceeding (prior to issuance of
the judgment) and a subT is named as a co-Respondent, the proceeding will be
stayed against T and either stayed or dismissed against subT (LL may not
proceed directly against subT)
AC.

RECORDING OF THE LEASE

1) Rental agreements of 3 or more years may be recorded pursuant to RPL 291

2) Failure to record such a lease only voids the lease as against a bona fide
subsequent purchaser for value who has recorded first.
9. ADDITIONAL AFFIRMATIVE DEFENSES
A PREMISES RENDERED UNTENANTABLE DUE TO FIRE OR THE ELEMENTS
1) When premises is destroyed or otherwise rendered unfit for occupancy due to
no fault of T or Ts guests, then T may surrender possession and terminate the
rental agreement without notice.
a) only the case when the parties have not expressly agreed to the contrary
AD.
THE TENANT MADE MORTGAGE PAYMENTS ON BEHALF OF THE
LANDLORD
1) Summary proceeding may not be utilized to regain possession of real property
where the payments made by the occupant were monthly mortgage
installments, as opposed to rent.
2) T is not entitled to a credit for mortgage payments that may have been made on
behalf of LL
AE.
THE PARTIES ENTERED INTO A PURCHASE AGREEMENT DURING
THE LEASEHOLD (MERGER)
1) existing LLT relationship is terminated when parties enter into K for premises
2) In event sale does not close, LL is barred from commencing a summary
proceeding to evict the former T following expiration of a renal agreement
AF.MUTUAL MISTAKE/FRUSTRATION OF PURPOSE (RECESSION OF LEASE)
1) Equitable defense that allows for the rescission of a rental agreement where the
mistake on the part of both parties was substantial and existed at the time the
renal agreement was made

23

AG.
LEASE TERMINATION AND FORFEITURE CLAUSE FOR A BREACH
OTHER THAN THE NON-PAYMENT OF RENT
1) In order for a forfeiture clause to be upheld, court must determine the cause is
reasonable and a material breach had occurred. Factors generally considered:
a) right to declare the forfeiture distinctly reserved by LL
b) was the material breach clear and unambiguous
c) did LL exercise its rights promptly
d) would enforcement of the provision be unconscionable under the
circumstances
2) Ts failure to provide LL with a copy of the insurance policy is not a material
breachfailure to maintain continuous insurance may be sufficient.
AH.

TENANTS IN COMMON

1) Tenant in common has equal ownership rights to premises with one or more
persons and/or entities.
2) Co-tenants have an equal right to possession of the premises which precludes
their removal through summary proceeding.
AI. LACHES (STALE RENT)
1) Equitable defense based upon the principle of fairness. T must demonstrate
a) the conduct for which the remedy is sought, such as the non-payment of rent
b) LL delayed in asserting its rights
c) lack of knowledge or notice the LL would assert its rights
d) injury or prejudice to T if the relief is granted or the summary proceeding is
not barred, including Ts inability to pay because T reasonable believed LL
would not attempt to collect the rent.
2) When successfully asserted, LL may be awarded a money judgment for unpaid
rent, but T may remain in possession of the subject premises.
AJ. THE TENANT PASSES AWAY DURING THE TENANCY
1) Death of a tenant prior to the expiration of the rental agreement neither
terminates the renal agreement nor alleviates obligation to pay rent unless
agreed otherwise.
2) LL must name the Estate of the decedent in subsequent summary proceeding
and serve all proper predicate notices upon the Estate in the same fashion it
would the tenant.
3) When a deceased Ts lease expired and was not renewed prior to death or the
estate was not in possession of the premises, the Estate is not a necessary party
and need not be named in the summary proceeding.
4) Non-payment: RPAPL 711(2) provides that where no person has taken
possession of the premises and no administrator or executor has been
appointed, the proceeding may be commenced after 3 months rom the date of

24

death of the tenant by joining the surviving spouse or if there is none, then one
of the surviving issue or if there is none, then any one of the distributes.
a) LL must demonstrate that an administrator or executor has not been duly
appointed
b) Does not apply to holdover proceeding
AK.

NON-DELIVERED WRITTEN LEASE

1) Written rental agreement is not valid until an executed copy is delivered to and
accepted by T
a) if T does not take possession, agreement not enforceable.
2) If T takes possession and stops paying rent w/o receiving copy of the executed
lease, the lease may be enforced but on a month to month basis.
AL.
LANDLORD FAILED TO PROVIDE RENT RECEIPTS (RESIDENTIAL
LEASE)
1) LL has a duty to provide residential T a written rent receipt where the rent is paid
by any means other than personal check.
2) Receipt must be signed by the person receiving the rent, identify the subject
premises, list the date, amount paid and period for which payment is made.
AM.

CONDOMINIUMS (NON-OCCUPYING OWNER)

1) Non-occupying LL-owner rents a unit to T but fails to pay condos fees within 60
days of the allowable grace period, then managing board may make written
demand that T pay all subsequent rent payments directly to the Condo.
a) Condo association must provide the non-occupying owner and T written
notice that arrears have been satisfied within 3 business days of final
payment
AN.

RETALIATORY EVICTION

1) LL may not serve a notice to quit, commence a summary eviction proceeding to

recover possession of real property or in any way substantially alter the terms of
a rental agreement in retaliation for any of the following protected acts by T
a) complaint made in good faith to a governmental agency regarding LLs
alleged violation of a health or safety law, regulation, code, or ordinance
b) action taken to enforce Ts right pursuant to a renal agreement
c) Ts participation in a Tenants or Residents Association
d) Also, LL may not refuse to renew or offer a new lease shorter than 1 year to T
in retaliation for any of the above described conduct
2) Defense may be asserted in a holdover proceeding involving residential property
excluding owner-occupied dwellings with fewer than 4 units
3) Defense not applicable in a non-payment proceeding
a) Exception: LLs non-payment claim is frivolous or otherwise a pretext for
commencing an unlawful proceeding
4) T must affirmatively assert the defense or it is deemed waived

25

AO.

NEW YORK SOLDIERS AND SAILORS CIVIL RELIEF ACT

1) LL may not evict on premises occupied chiefly for dwelling purposes by a person
in military service or the spouse, children, or other dependents of a person in
military service except with leave of Court.
AP.

WAIVABLE DEFENSES

1) Failure to assert a non-jurisdictional affirmative defense within the Answer or preAnswer motion to dismiss may be deemed waived.
2) Courts lack of subject matter jurisdiction over a dispute may not be waived
under any circumstance
10.

SECURITY DEPOSIT

1) Not rent, but rather funds LL holds in trust for T until after T vacates.
2) If subject premises are returned in acceptable condition, LL will ordinarily be
required to return security deposit.
3) Otherwise, LL may apply to security deposit to make repairs for damage to the
premise other than ordinary wear and tear caused by T and/or its guests
4) Deposit may be applied toward rent arrears or in satisfaction of a judgment if the
renal agreement so provides and/or upon the consent of the parties.
5) LL must provide T w/ name and address of the banking institution where the
security is deposited and the amount of the deposit.
a) Absent an agreement, LL has no obligation to maintain security deposit in an
interest-bearing account
6) Housing Part may not award LL a money judgment due to Ts failure to pay the
agreed upon security deposit
A LANDLORDS RETENTION OF THE SECURITY DEPOSIT WHERE THE TENANT
DOES NOT TAKE POSSESSION
1) LL may retain security deposit where T has failed to provide timely notice that it
would not take possession of the subject premises.
2) LL may not keep deposit if premises were not move-in or habitable at the time
the lease commenced.
AQ.
UNLAWFUL CONVERSION/COMMINGLING OF THE SECURITY
DEPOSIT
1) LL has a duty to refrain fro commingling the security deposit with its own funds
even where T may have breached the rental agreement
11.

SOCIAL SERVICES LAW (SPIEGEL LAW)PUBLIC ASSISTANCE

1) NYS has a state-wide program of additional state payments for qualifying

individuals (65+, blind or disabled, and satisfy both residency and citizenry

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requirements, and have countable income at or below minimum monthly

standards)
A VIOLATIONS AND UNSAFE BUILDING CONDITIONS
1) NYS public assistance payments may be made directly to LL
2) Non-payment proceeding defense: If the building has existing violations which
relate to conditions that are dangerous, hazardous or detrimental to life or health
a) Complete defense
b) Defense can only be asserted after Social Services or other governmental
agency withheld rent due to unsafe conditions.
c) Not applicable to holdover proceedings
AR.

ADULT HOME OPERATORS

1) Authorized adult home operators and their residents are not governed by
conventional LLT relationships
2) Adult home operator may commence a special proceeding in the housing part for
such relief where grounds for termination are established.
a) If operator prevailsInstead of an eviction, the resident may continue to
reside in the adult home until another suitable residence is located.
12.

COURTROOM PROCEDURE AND PROTOCOL

1) Corporations and LLCs must appear by counsel

A NASSAU SUFFOLK LAW SERVICES COMMITTEE, INC.
1) Represent Respondents of limited financial means
AS.

CALL OF THE CALENDAR

1) First Call generally, stipulations for settlements are heard, then attorney
applications for adjournments. Then remainder of Calendar is called.
2) Each side in a summary proceeding is ordinarily permitted one 1 week
adjournment which will be grated with a final marking against the requesting
party.
AT.STIPULATIONS OF SETTLEMENT
1) Binding agreement that will generally be enforced in the event of substantial
non-compliance
2) Amendments to the Petition should be memorialized in the Stipulation (or
minimum placed on the record)
1

RPAPL 746PRO SE SETTLEMENTS

1) The Court must fully describe the terms of the stipulation to a pro se litigant.

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2) Default judgment will not be granted against a non-appearing Respondent

without first adjourning the action to another date
(25) A SPOUSE MAY NOT BIND ANOTHER SPOUSE TO A
SETTLEMENT
1) The appearing spouse may not sign on behalf or otherwise bind a non-appearing
spouse to a settlement agreement
(26)

LANDLORDS ACCEPTANCE OF FUTURE RENT

(A)STIPULATION CONSENTING TO JUDGMENT AND WARRANT WITH TIME

TO PAY
1) If the stipulation does not provide that the money received for a term following
issuance of the judgment is use and occupancy (as opposed to rent) or that the
payments are not entitled to revive the tenancy, then acceptance of the
additional payments may invalidate the judgment of possession and warrant.
2) If the stipulation includes a provision that future payments are first to be applied
to the current months rent, then the judgment and warrant would stand
notwithstanding the payment for a period subsequent to the issuance of the
judgment.
3) LL acceptance of rent for a future month following issuance of the judgment is
permitted for commercial premises regardless of the manner in which the
judgment was obtained provided the parties did not intend to continue the
tenancy.
(B)STIPULATION ACKNOWLEDGING RENTAL ARREARS ARE OWED
WITHOUT A JUDGMENT
1) Finding of non-compliance with a Stipulation may be based on Tenants failure to
pay rent arrearscannot be based on the failure to pay a future months rent.
AU.
1

HEARINGS

ROLE OF THE COURT

1) Majority of summary proceedings settle prior to a hearing on the merits
2) When amicable resolution is not attainable, Petitioner must prove its case at a hearing by
a fair preponderance of the evidence.
3) Pro se parties are held to the same standards as represented litigants
a) However court may provide a pro se litigant some latitude
b) Court may take an active role at the hearing, particularly but not exclusively where
one or more of the parties are unrepresented
4) LL non-appearance does not necessitate a dismissal if counsel is present
5) When Petitioner prevails
a) Outside NYC: Court may stay enforcement of the warrant of eviction through at least
the last day for which a money judgment is awarded

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b) In NYC, RPAPL 732(2) provides that when Respondent appeared at the

hearing, a stay on the issuance of the warrant of eviction may not exceed 5
days.
i) When Respondent defaults, the stay may not exceed 10 days from the
date of service
ii) The court must say the issuance of the warrant of eviction in a holdover
proceeding based upon a breach of the rental agreement for 10 days
during which the Respondent may correct such breach
(27)

EVIDENTIARY ISSUES

1) Rules of evidence are applicable

A HEARSAY
1) The mere introduction of a particular piece of evidence does not necessarily
mean the trier of fact will give that evidence full credit or any weight
whatsoever.
2) An out-of-court statement of a non-party which is offered as evidence of the
witness state of mind, rather than for the truth of the statement itself, may be
admissible.
(C)BEST EVIDENCE RULE
1) LL will typically seek to introduce the lease
2) When the original rental agreement is lost or destroyed, the document may be
introduced as a secondary source where
a) an adequate explanation for the non-production is provided
b) the non-production was not the result of bad faith on the part of the moving
party and
c) the accuracy of the secondary source has been demonstrated
3) A reliable photocopy of the lost or destroyed rental agreement may be
introduced
(D)

AUDIO RECORDINGS

1) In NY, it is lawful to record a conversation w/o notice where at least 1 party to

the conversation consents.
2) To introduce the audio recording into evidence, a proper foundation must be
provided through clear and convincing evidence regarding the relevancy,
authenticity, completeness and accuracy of the recording.
AV.

APPEALS

1) Party may appeal by filing a Notice of Appeal and paying the appropriate fee
within 20 days of the notice of Entry.

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2) Party seeking the appeal must request and serve a copy of the transcript of the
minutes on the opposing party and execute a Stipulation of Settlement of the
Transcript.
3) The appropriate Court depends on the location and origination of the trial court.
4) Appeals from City courts outside NYC and the Justice Courts are made to the
appropriate County Court except where the Court is located within the First or
Second Judicial Departments.
5) Respondent seeking a stay of enforcement of the money judgment pending an
appeal may deposit the amount awarded with the Clerk of the Court.

13.

STAYS, INJUNCTIONS AND ORDERS TO SHOW CAUSE

1) Court may stay enforcement of a warrant of eviction, vacate a judgment and

warrant of eviction for good cause pursuant to RPAPL 749(3)
A ORDERS TO SHOW CAUSE (STAYS AND VACATING JUDGMENTS)
1

72-HOUR WRITTEN NOTICE

1) Following the expiration of a stay on enforcement of a warrant of eviction, the
Sheriff/Marshal/Constable must provide the Respondent with a 72-Hour Written
Notice prior to the eviction.
a) 72 hour notice excludes Saturday, Sunday, and public holidays
2) After receiving a 72 Hour Notice, a Respondent seeking to vacate a default
judgment and/or additional time to remain in possession may submit an ex parte
Order to Show Cause.
3) The Courts signing of a stay in connection with an Order to Show Cause does
not vacate the warrant of eviction. It delays the eviction for as long as the stay
remains in place.
4) Personal appearance are generally required and oral arguments heard on the
motions return date.
5) Court may require the payment of use and occupancy for the additional time the
Tenant remains in possession of the subject premises.
6) Exception: when the occupant resides in a manufactured home park.
a) If the parks Owner seeks to evict a mobile home T (who owns the mobile
home) due to non-payment of rent or the eviction poses an immediate threat
to the health, safety or welfare of the other Tenants, then Sheriff must
provide a Thirty-Day Written Notice before performing the Eviction.
b) When T does not own the mobile home, Sheriff need only provide 72-Hour
Notice
7) NYCL RPAPL 747-a When LL prevails in a nonpayment proceeding, the Court
shall not grant a stay of the issuance or execution of any warrant of eviction nor
stay re-letting of the premises after 5 days following the award unless T paid the
judgment or deposited same with the Clerk of the Court prior to the execution of
the warrant
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(28) GROUNDS TO VACATE A DEFAULT JUDGMENT AND

TRAVERSE HEARINGS
1) Respondent may vacate a default judgment by providing
a) an excusable reason for the default
b) establishing the lack of jurisdiction
2) In addition to the issuance of an immediate stay on execution of the warrant of
eviction, the Respondent will typically further request dismissal of the
proceeding or, in the alternative, a hearing on the merits or a traverse hearing
regarding service
3) Excusable default may be satisfied by an allegation of illness or an automobile
breakdown on the hearing date
4) Lack of jurisdiction itself is a basis to vacate a default judgment.
5) Although the affidavit of service generally establishes a presumption of proper
proof of service, where the Respondent raises a sufficient basis to challenge the
validity of the service claimed. (Court may not rely solely on the affidavit of
service)
a) A credible statement that Respondent was not at home when personal
service is alleged or the affidavit of service includes an improper address
and/or description of the person served may be adequate.
6) When the Respondent sufficiently alleges improper service, the Court must
conduct a traverse hearing.
a) The burden is on the proponent of service to establish that process was
properly served.
b) Reliance on the affidavit of service exclusively is impermissible.
c) If the traverse is sustained, then the default and resulting judgment must be
vacated due to the lack of personal jurisdiction
d) NYC Process Server must bring all records relating to the matter at issue
(29)

UNDERTAKING AS A CONDITION FOR A STAY

1) If the Order to Show Cause is signed, the Respondent may be directed to post an
undertaking with the Clerk of the Court as a condition for the stay.
2) If Respondent fails to post the undertaking then the Court must still decide the
motion on its merits because a denial on the grounds that the undertaking was
not posted is reversible error.
(30)

DECIDING THE ORDER TO SHOW CAUSE

1) Since the parties at times reach a settlement on the return date of the Order to
Show Cause, it is worthwhile to have the parties conference.
2) If resolution is unreachable and the motion is granted, then
a) the judgment and warrant of eviction may be vacated and the case
dismissed
b) A hearing may be held on the merits
c) A traverse hearing scheduled where service is sufficiently disputed.

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d) Judgment of possession of warrant of eviction may stand but the money

judgment will be reduced.
3) If the motion is denied, the Court will typically lift the stay and authorize
enforcement of the judgment and warrant of eviction.
AW.

VACATING THE WARRANT (RPAPL 749(3))

4) RPAPL 749(3) permits the Court to vacate a warrant of eviction for good cause
provided the warrant has not been executed upon.
5) Mere payment of the rent arrears does not constitute the requisite good cause
to vacate the warrant of eviction after issuance of same.

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