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RealEstateAnswer, Lawyer
Category: Real Estate Law
Satisfied Customers: 27992
Experience:  10+ years in handling Leases, Landlord-Tenant, Foreclosures,Mortgages, and Eviction cases
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Can a tenant be evicted in New York State in 3 days of

Customer Question

Can a tenant be evicted in New York State in 3 days for lack of payment?
There is no rental agreement or down payment; it has been rented on a month to month basis; in the past few months the rent is paid later and later and the tenant is becoming very difficult to work with.
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  RealEstateAnswer replied 2 years ago.

Good afternoon. Unless there is a written or verbal lease which indicates otherwise, before a Summary Proceeding (Landlord-Tenant proceeding) can be brought for non-payment of rent, a personal demand for rent or service of a written notice giving the tenant at least 3 days to pay the rent or surrender possession of the premises must be served upon the tenant.

The 3 day notice must state the amount of the rent due and the period of time for which the amount is due, together with a demand that the total amount be paid within three (3) business days after service of the notice. The date of service, Saturdays, Sundays and holidays are excluded.

2. Affidavit of Service (for service of 3 day notice):

After the 3 day notice has been served on the tenant, an Affidavit of Service must be signed before a Notary Public by the person that served the 3 day notice. The papers must be served by a person over the age of 18 years old. It is suggested that the papers NOT be served by the landlord, but by a disinterested third person.

After the tenant has been served with the 3-day notice and has failed to pay the rent due, a Landlord- Tenant Proceeding can be initiated in the City Court by completing and filing the following documents:

3. Notice of Petition

This paper can be issued by an Attorney, a Judge or the Clerk of the Court. If a Judge or the Clerk of the Court is asked to sign the Notice of Petition, the Petition must be completed by the landlord and submitted to the City Court offices before it is served on the tenant.

Special Note: The Court Date cannot be sooner than 5 days nor later than 12 days from the date the tenant is served. Summary Proceedings In Oneonta City Court can be held on any weekday at 9:00 a.m.. The landlord (petitioner) and the tenant (respondent), if properly served, must appear on the court date.

4. Petition

The Petition is a form that must be completed by the landlord and attached to the Notice of Petition and the 3-day notice, which was previously served on the tenant.

The Petition must state the respondent's interest in the property, that is, the petitioner must specify if the respondent is a tenant, a sub-tenant, or someone in possession of the property for some other reason. To do this, the petitioner should state if there is a written lease or a verbal agreement to lease, and if so, the terms of such an agreement (length of lease term and payment schedule e.g. payment once a month)

The landlord is to sign the Petition before a Notary Public.

When the papers are completed, a Court Date provided and the Judge or Clerk of the Court has signed the Notice of Petition, then and only then can the tenant be served with the Notice of Petition and Petition.

The Notice of Petition, Petition, 3-day Notice (previously served on the tenant) and corresponding affidavit must be filed with the Court along with the filing fee. The Judge or Clerk of the Court will sign the Notice of Petition and return the Notice of Petition and Petition to the Landlord. The Notice of Petition and Petition must be served on the Tenant not less than 5 days and not more than 12 days before the Court date.

5. Affidavit of Service (for service of Notice of Petition and Petition):

This Affidavit of Service is filed with the Court after service of the Notice of Petition and Petition on the tenant. The Notice of Petition and Petition must be served by a person 18 years or older. The person serving the papers will be attesting to the fact that the papers were served within the time limits allowed (not less than 5 days and no more than 12 days before the Court date). The person who serves the papers must not be a party to the action.

It is preferable that personal service be made upon the respondent- tenant or upon a person of suitable age and discretion residing with the respondent-tenant. In cases where personal service is not possible, service may be made by "nail and mail", that is, posting the papers on the door of the residence of the respondent-tenant AND mailing a copy of the papers by certified mail, return receipt requested. (RPAPL sec. 735)

The Affidavit of Service must be filed with the Court within 3 days after service. Failure to file the affidavit of service within 3 days after service may result in the dismissal of the case.

If, at any time, it is determined by the Landlord that the Court date is no longer needed, the Landlord should notify the Court, in writing, as soon as possible which may be faxed to the City Court. Note: The filing fee can not be returned.

If the tenant pays the outstanding rent before the Court proceeding, the tenant cannot be evicted from the premises.

If the tenant fails to appear on the Court Date, the Court may sign the following document:

6. Warrant for Non-Payment:

This document should be completed prior to the Court date by the landlord and brought to the Court hearing. This will enable the Sheriff to remove the tenant from the premises once it has been signed by the Judge.

Note: There is a mandatory 72-hour waiting period between the time you serve the tenant with a warrant and when the tenant may be removed from the premises by the Sheriff.

Expert:  RealEstateAnswer replied 2 years ago.
I just wanted to follow up and see if you had any other questions or needed me to clarify something. I am here to help, so please let me know. Thanks!