There are essentially two mechanisms for evicting someone: the non-payment proceeding and the hold-over proceeding. Figuring out which one is right for you is not always easy, but it is crucial. First you must know the relationship of the person you are evicting to the property (not everyone other than the homeowner is a tenant). For example, there are tenants, under-tenants, licensees, squatters, etc. Spouses, domestic partners and children of the homeowner/landlord often cannot be evicted in a landlord-tenant court.
If the person you wish to evict is a tenant, then the next questions you should answer are why you want to evict the tenant and what your ultimate goal is. For example, do you want to evict your tenant because he or she has stopped paying rent? And, if so, are you prepared to reinstate the tenant if he or she pays all of the back rent? If the answers to both of these questions are yes, then you probably want to bring a non-payment proceeding. If, however, you want your tenant removed with no opportunity to “pay and stay,” then a hold-over proceeding is the way to go.
Next is the issue of whether there is a written lease in effect for a term, such as a year. If there is, then a hold-over proceeding will probably not be possible and a non-payment proceeding is the only alternative.
So, you have a tenant who has not paid rent and you want him or her to pay the rent or leave. Now what? The law requires you to make a demand for the rent. This can be made orally or in any of several other non-formal ways. In the alternative to demanding the rent, you can arrange to have a three-day notice served on the tenant, giving him or her the choice of either paying the back rent or surrendering possession of the premises within three days (but, be cautioned: if you choose this method, the notice must be in a very particular form and must be served in a very particular way or it will have no legal effect).
Once that is out of the way, you can proceed to the next step, which is to commence a non-payment action in court. But which court? The answer to that depends on where the property is located. If it is located anywhere in Nassau County, the action can be commenced in the First District Court of Nassau County. If the property is located in any of the five western towns of Suffolk County, the action can be commenced in the Suffolk County District Court for the district covering the town in which the property is located (for example, if the property is located in the Town of Babylon, the action can be commenced in the Second District Court of Suffolk County; for Huntington, the Third District Court; for Smithtown, the Fourth District Court; for Islip, the Fifth District Court; and for Brookhaven, the Sixth District Court). If the property is located in any of the five eastern towns of Suffolk County, then the action can be commenced in the town justice court of the appropriate town.
Once the correct court is chosen, you must draft and file a notice of petition and non-payment petition. If you do not have an attorney (which can be big mistake), the clerk of the court must issue (sign) the notice of petition; if you have an attorney (which is advisable), your attorney can issue the notice of petition and will take care of this for you. After that you must arrange to have the notice of petition and non-payment petition served on the tenant. Because this must be done by someone who is not a party, and in a very particular manner and within a very strict time frame, it is best not to attempt to handle this on your own, but instead use the services of an experienced process server (if you have an attorney, he or she will arrange for all of this for you).
You must then appear in court on the date and time that the petition is noticed to be heard. In court, the landlord is known as the petitioner, and the tenant is known as the respondent. In most landlord-tenant courts, if all parties appear, you will be required to conference the case (talk about it) with your tenant, often outside the courtroom, in an effort to settle the case. If the parties can reach an agreement, you will have to either draft or fill out a stipulation of settlement form and present it to the judge. If it is approved, your case will be settled.
If settlement is not possible, then a hearing will be held, usually the same day (except in Nassau County). At the hearing, you will have to testify, present your evidence and prove your case; the tenant will have the opportunity to present whatever defenses he or she may have. Then the judge will make a decision.
Each party (landlord and tenant) is entitled to one adjournment as a matter of right. An adjournment is a postponement of the case to another day, which must be requested of the court. If the other party does not consent to the adjournment request, then the maximum time the case can be adjourned is for ten days (seven in the Suffolk County District Court, since each district only holds landlord-tenant court one day per week).
If the landlord appears and the tenant does not, then the landlord will usually be entitled to a default judgment for all of the relief requested in the petition. If the tenant appears and the landlord does not, the case will usually be dismissed. The case will also usually be dismissed if no parties appear in court. In a non-payment proceeding, if your tenant shows up to court and offers you all of the back rent in cash, you must accept it and reinstate the tenancy.
The relief a landlord seeks in court is a judgment of possession, a monetary judgment (for back rent) and a warrant of eviction (an order for the Sheriff to remove the tenant). If you are awarded these things you will need to know what to do with them. If there is no monetary award then you can simply take your judgment and warrant to the Sheriff for enforcement. If there is also a monetary judgment, however, then you must first file it with the county clerk and obtain an execution judgment before visiting the Sheriff.
There is also the question of what to do when you want to evict someone other than a tenant, or when you want to evict a tenant for reasons other than rent. In those cases, the hold-over proceeding is appropriate. These types of proceedings take longer than non-payment proceedings and require a special type of notice, depending on the circumstances, to be served on the tenants or persons to be evicted before you can bring the proceeding.
Navigating the landlord-tenant eviction process is not easy, and attempting to do it yourself is not advisable by the courts, as many landlords have learned the hard way. It is highly recommended that you retain an experienced landlord-tenant attorney to handle your matter.
