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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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What NYS law may I reference failure to pay rent?

Customer Question

What NYS law may I reference for tenants failure to pay rent ?
Submitted: 12 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 12 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Under NY Real Property Actions and Proceedings Code 711, the landlord may pursue eviction for non-payment of rent. See: http://codes.lp.findlaw.com/nycode/RPA/7/711
NY CPLR 3212 allows a party to seek summary judgment. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made. If no such date is set by the court, such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. See: Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]. The Court's function when determining a motion for summary judgment is issue finding not issue determination. See: Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957].
The courts hold that because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. See: Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]. When the existence of an issue of fact is even debatable, summary judgment should be denied. See: Stone v Goodson, 8 NY2d 8, 12 [1960].
Customer: replied 12 months ago.
Thank you for your response. My complaint is filed with the Supreme Court of the State of New York County of Putnam. The court's Decision & Order stated that I, the plaintiff, did not specify I am seeking summary judgement and did not provided proof of service upon the defendant. The complaint was for non-payment of rent for a duplex apartment & garage. The tenant left, but promised to pay & never did. Service by the County Sheriff was repeatedly tempted, but never successful as per their affidavit of attempted service of process. Therefore, what law may I reference in response to the court decision & do I need to submit another RJI, or addundum with my response ? What if the process server is not successful again ? Thanks
Expert:  Law Educator, Esq. replied 12 months ago.
Thank you for your reply.
You have to comply with service of process rules and if you could not service them, you would need to ask the court for leave to serve the tenant by publication if you cannot get a process server to find them to serve them. There has to be reasonable efforts used to serve them, which includes asking the court for service by publication. So, since they are claiming no service, you need to get the process server to try to serve them again and if unsuccessful in locating them, you have to file a motion for leave for service by publication, http://law.justia.com/codes/new-york/2012/cvp/article-3/r316

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