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Landlord -Tenant Litigation allows an individual or business to resolve disputes pertaining to leased or rented property; often the issues are critical and pertain to eviction and/or collection of significant amounts of past due rent; because the determination is important to both parties, whenever possible Landlord-Tenant Litigation should be dealt with by an experienced attorney.

Landlord and Tenant Court Jurisdiction in General –

One of our firm’s concentrations is Landlord-Tenant Law where we represent both Tenants and Landlords in various litigation in both the Landlord-Tenant Court and the New York Supreme Court. Landlord -Tenant Litigation allows an individual or business to resolve disputes pertaining to leased or rented property; often the issues are critical and pertain to eviction and/or collection of significant amounts of past due rent; because the determination is important to both parties, whenever possible Landlord-Tenant Litigation should be dealt with by an experienced attorney. The cases handled in Landlord-Tenant Court deal with rented and/or leased property and can affect important interests. The cases can range from disputes over the following:

1. Traditional and non-traditional residential rental agreements – Landlord-Tenant matters are common for traditional leases for rented apartments, rooms, or houses or other rented residential spaces under a traditional signed agreements; but they are also common for non-traditional situations like rented rooms, basements, and other accommodations, some of which are month to month and do not have a formal lease and some which may not be legal under town or local ordinances but still fall under the jurisdiction of the landlord tenant court.

2. Hold-overs tenants from foreclosures sales – The last step in a foreclosure case is a foreclosure auction and sale where the defendant’s distressed real estate is auctioned and sold to the highest bidder on the court house steps. After such a foreclosure sale the former owner loses ownership over the property and becomes regarded as a “holdover tenant”. A holdover tenant does not have many legal rights. to remain at the property and is eventually forced to vacate after the high bidder at the foreclosure sale starts an eviction action to evict the holdover tenant. But at the end of the foreclosure process if a clients home was sold at a foreclosure sale, the former home owner is not required to immediately leave but is legally considered to be a “holdover tenant” and subject to an eviction proceeding in Landlord-Tenant Court which can started by the buyer of the property at the foreclosure sale who is now considered to be the owner. Often the mortgage holder itself becomes the owner of the property after the foreclosure sale if there are insufficient bids at the foreclosure sale which is usually an auction sale held at a local courthouse. The buyer as the new owner can obtain a warrant of eviction in Landlord-Tenant Court which would force an eviction unless there is meritorious opposition based on technical, substantive and equitable reasons.

3. Cooperative apartment litigation – these are usually actions to evict by Coop Board since this form of apartment is not owned like a condominium apartment where tenants hold a deed; here tenants own shares and lease their units under a proprietary lease;

4. Commercial rental space – Commercial rental space unlike residential rental space is occupied by a business as opposed to individual persons. Therefore, the Courts are harsher to a commercial litigant, to both the landlord and the tenant, where there is the assumption of sophistication by the business entity, a lack of personal safety issues issues involved and there is usually more monetarily lost or gained through delay. Where the expectations of are not many for possible resolutions to a commercial lease dispute, they are difficult to defend and litigate, except where we have good reasons and proof. Most commercial cases involve a corporate tenant as well as a corporate landlord and often there is a question as to whether the landlord can mitigate damages (although he is not required to do so) and the extent of personal liability for the principal of the corporate tenant under a personal guarantee which may be conditionally limited by a “good guy clause”.

5. Issues Litigated in Landlord Tenant Court – Most issues involving leases are litigated in the Landlord Tenant Court. The big exceptions where a stay is sought, the state supreme court is the place to go. Also where a bankruptcy case or a matrimonial case is involved the matter goes to the specific court designed to deal with such matters. Finally in a lease dispute there may be a mediation or arbitration and/or jurisdictional clause in the contract. Issues can be more involved than just rent collection or evictions and can involved building violations, issues regarding lack of building services and/or issues regarding lease compliance other than rent payment like nuisance and/or habitability or constructive eviction issues.

Landlord and Tenant Courts in General –

Housing Court actions are handled in the Landlord-Tenant Parts of the District Courts in Nassau and Suffolk Counties and in the Housing Part of the Civil courts in NYC, Bronx, Brooklyn, Queens and Staten Island. There is one District Court in Nassau County and six District Courts in Suffolk County. The location of the property determines where the court case will be heard.   A court action is commenced when the owner and/or landlord of the property files a Petition.  If you are served with a Petition, you will have a limited time, generally 20-30 days to file either an Answer, asserting all of your defenses and any counterclaims or a Motion to Dismiss. The failure to timely file an Answer or Motion to Dismiss, would impair your ability to defend the action as the Court could deem these defenses to have been waived.

The attorneys at the Office of Ronald D. Weiss have experience handling the following types of housing court matters:  non-payment of rent; holdover/eviction actions; cooperative eviction actions for breach of proprietary lease, bylaws or house rules; nuisance eviction actions; harassment actions, actions for correction of housing code violations, and actions regarding alleged breaches of commercial leases.  In the context of commercial lease violations, an emergency application for a Yellowstone injunction must be filed in the Supreme Court to stay the cure period when the lessee is served with a Notice to Cure. The window period to obtain a Yellowstone injunction is extremely brief,  and requires immediate action.    

Predicate Notices: for Non-Payment Action –

Before starting an action the Landlord must decide if they are primarily interested in the tenant being evicted as opposed to collection of rent. If the goal is collection of rent the proceeding is considered a “non-payment action.” Prior to the commencement of a Non-Payment action, the Landlord must demand the rent by serving a 14 Day Written Demand.  In addition, the Landlord must send a letter by certified mail informing the tenant of a tenant’s default in paying the rent after the rent is overdue by 5 days.  The failure of the Landlord to serve these notices and the failure to serve them in the correct manner are grounds for the dismissal of a non-payment action.

Predicate Notices: for Holdover Action –

If the Landlord is trying to get possession of the premises, it is called a “holdover action.” The type of Notice required depends upon the basis for the Holdover action. A Holdover action is usually commenced due to one of the following: expiration of term of the lease; post-foreclosure; or violation of cooperative Proprietary Lease, By Laws or House Rules.

If the term of the lease has expired, the Landlord must serve either a 30 Day, 60 Day or 90 Day Notice. The period of time for the Notice depends upon the term of the expired lease and the length of the occupancy of the subject premises. If the tenant has lived at the premises less than one year, the landlord must provide at least 30 days’ notice. If the tenant has lived t the premises more than one year but less than two years, the landlord must provide at least 60 days notice. It the tenant has lived there more than tow years, the landlord must provide at least 90 days’ notice.

When the new owner of a property purchased at a foreclosure sale, wants to evict the occupants of the property, the new owner must first serve a 10 Day Notice to Quit with a certified copy of the Referee’s Deed. In addition, when the premises is occupied by a tenant of the former owner, the tenant must be served with a 90 Day Notice.  These Notices must be served either personally, by service on a person of suitable age and discretion or by nail and mail. If a Notice is just left on a doorstep, this is improper service and would serve as the basis for a motion to dismiss the holdover action.

The Petition – Strategy: Pursuing rent and/or eviction?

In Landlord-Tenant Court, the document that commences the action is the Petition. The Petitioner is usually the owner or landlord of the property and the Respondent is generally the tenant or occupant of the premises.  The Petitioner needs to serve all adults living at the property. When the Petitioner does not know the name(s) of the occupants, they can be referred to as “John Doe” or “Jane Doe”. If any court papers are received at the premises, an attorney should be consulted and immediately  retained as either an Answer or a Motion to Dismiss should be filed.

The Housing Court actions are either Non-payment or Holdover actions. A Non-Payment action seeks rent arrears and could result in a money judgment against the tenant as well as a judgment of possession, which may lead to the eviction of the tenant.  In a Holdover action, the owner seeks a judgment of possession and a warrant of eviction. Because a tenant in financial hardship may file a bankruptcy case or otherwise be unable to pay on a money judgement, the Holdover action is safer in that it lets the owner gain control over the Property which is ultimately the main goal.

When a tenant or occupant retains this office to represent his/her interests in either a Non-payment or Holdover case, the team of experienced landlord/tenant attorneys will obtain all of the facts and circumstances in order develop a strategy for achieving the best result for you.  The knowledge that our attorneys obtained by practicing in the housing court for the past 30 years is invaluable in letting us go beyond just legal advice, but now we can also strategize in the action.

The Answer and/or Motion to Dismiss

Some of the clients, both businesses and individuals, of The Law Office of Ronald D. Weiss, P.C. are faced with potential eviction actions by their landlord. One response to an eviction action is to defend the litigation with the landlord. Our firm can help the client respond to the petition that initiates the landlord-tenant proceeding. This needs to be done shortly after service of the petition.

The Answer or Pre-Answer Motion to Dismiss requires a knowledge of the facts and law. This is the tenant/occupant’s opportunity to assert all defenses.  If a defense is not raised at this stage, it may be deemed to have been waived, and cannot be raised later. For example, a defense to the action exists where the Petition and Notice of petition were not  served on the tenant/occupant either by personal service, service on a person of suitable age and discretion or by nail and mail. In addition certain predicate notices must be served, such as a 90 Notice Day and/or 10 Day Notice to Quit in a Holdover action and the failure to properly serve these notices mandates dismissal. In a post foreclosure Holdover action, the Petitioner must exhibit a certified copy of the Referee’s Deed to the Respondent. In the event that this is not properly done, the case may be dismissed.  

If you are served with a Petition and Notice of Petition in a Non-Payment action, you must file an Answer or a pre-Answer Motion to Dismiss. In the event that you ignore the Petition, the court  may render a judgment on default, which would have devastating effects on your credit.  In addition, the court may issue a warrant of eviction, which could be enforced by a Sheriff.

Other issues are the question of who breached the lease first, the tenant or the landlord? Also there are questions that pertain to lack of services and problematic legalities, violations of code, building violations and lack of compliance with zoning restrictions with the rental unit. These can be asserted as defenses or counterclaims but are often contractually barred from being asserted in this matter under a signed lease.

Defending the Landlord-Tenant proceeding allows the client to assert any defenses they may have to the manner in which such proceeding was initiated. Such representation also gives the client and our firm notice as to the status of the landlord-tenant proceeding and prolongs the proceeding. In some instances a client may have a strong technical or substantive defense, which may cause a landlord-tenant proceeding not only to be prolonged but to actually be dismissed. Also, to the extent the tenant can find issues that create a factual questions that necessitate a trial, the tenant can delay eviction. To the extent the landlord can avoid such technical and substantive issues and show the court that the facts of the case are clear and can not be disputed and that the law drives only in one direction to show that this is a case where the landlord’s rights to possession need to be respected, the landlord can more easily prevail.

Negotiation prior to Court Resolution –

The Law Office of Ronald D. Weiss can help its clients in such difficult circumstances by negotiating before, during and after the Landlord-Tenant Proceeding in an effort to seek resolution and save time and costs and avoid uncertainty. Often both sides seek to hedge their position with a compromise; where the tenant’s position is not strong, but they need a limited time to stay a stipulation is often entered to delay eviction so that the tenant can voluntarily leave after it had stayed a sufficient time to find new accommodations and make arrangements to move. often what is negotiated is the amount of time involved and where the time is short the landlord may pay the tenant to move; but where the time is longer the tenant may pay the landlord a fee for use and occupancy equivalent to a reasonable rental rate. However, where the landlord is having a harder time evicting the tenant, it needs to make sure that its litigated position is flawless since even small technical mistakes or issues can prolong the eviction even further or necessitate that the landlord be more conciliatory in negotiating a resolution with the hopes that settling the matter is less costly than continuing to litigate.

Trials and Court Hearings –

Pursuant to the Housing Stability & Tenant Protection Act of 2019, the landlord must accept payment of the full amount of rent arrears when the tenant offers this payment prior to the court date.  In the past, the landlord could refuse the payment and proceed with the court case.

If you are served with a Holdover Petition and Notice of Petition, the court papers should specify a date and time to appear in Court.  The Respondent or his/her counsel must appear in court on this date.  Any failure to appear in Court would have devastating consequences as a judgment and warrant would be issued on default. While a motion to vacate a default judgment could be filed, in our experience, this is something that should be avoided at all cost.   The  Law was amended in 2019 to eliminate the requirement that an Answer be made at least three days prior to the date that the Petition is to be heard.  Despite this Amendment of the Law, the Respondent would need to file a timely Answer or Motion to Dismiss to preserve his/rights and assert defenses to the action.

If you appear in Court on your first court date without legal representation, you may request an adjournment.  By law the Court must adjourn the case for at least 14 days to afford you the opportunity to consult and retain an attorney.

When you appear in Court in Nassau and Suffolk County, the Court generally encourages the parties to attempt to settle the case.  The landlord is generally represented by counsel and many tenants/occupants are disadvantaged as they appear pro se, or without legal representation.   If the case settles, the parties enter into a Stipulation of Settlement, which has the same effect as a binding contract.  Once this Stipulation is executed by the parties, the Judge will “so-order” the Stipulation, which means that a violation of the Stipulation also constitutes a violation of a Court Order or directive and requires further the court intervention.  As experienced landlord tenant attorneys, we would caution an unrepresented party from entering into a Stipulation of Settlement. Many tenants appear in our office after they have entered into a Stipulation of Settlement, are facing eviction, and realize that they cannot comply with the terms of the Stipulation.  If a tenant or occupant is agreeing to vacate a property, they should have competent and experienced legal representation that could negotiate an amicable result that affords the tenant/occupant sufficient time to vacate with dignity.  In addition, this firm is experienced in negotiating “cash for Keys” settlements, which provides payment to the tenant/occupant of some money in exchange for a surrender of the keys and the right to live at the premises. 

Generally, the Court is not encouraging trials except where there is no alternative, ie the case turns on factual issues like service of the petition or of the notices, the payments made and their allocation, or whether the tenant engaged in behavior that caused the landlord to reasonably declare that the lease was in default. A trial in Landlord-Tenant Court is usually quick and basic, but because of that a litigant needs to be very ready and prepared.

After the Hearing- Alternatives if Resolution Works or Does Not Work

If at the hearing there is a settlement in a stipulation that may work then the tenant needs to carefully abide by its terms. However if a resolution is not possible here are the possible alternatives:

1. Bankruptcy Stay – One way to get a stay of an eviction is the bankruptcy stay which temporarily stays all litigation; however, prior to filing the bankruptcy case it is important for a litigant to get legal advice as to options, including the bankruptcy to stay the eviction proceeding prior to the issuance of the warrant. There are several kinds of bankruptcy cases and how they work in the clients situation and how they interact with the eviction proceeding needs to be carefully analyzed.

2. Supreme Court Stay – Another way to get a stay of an eviction is a stay in the Supreme Court. It is not possible to get injunctive relief in landlord tenant court and if a stay is needed it must be obtained in Supreme Court. For example if the holdover tenant is the former owner of a house that was sold in a foreclosure sale, an Order to Show Cause in Supreme Court seeking to vacate the foreclosure sale and asking for a stay pending the determination may be a way to slow down an eviction even if it ultimately does not vacate the foreclosure sale.

3. Appellate Division Stay – A final way to get a stay of an eviction is a stay in the Appellate Division if the tenant is appealing an order of the Landlord Tenant Court or of the Supreme Court. To do so the tenant would need to succeed with an Order to Show Cause before the Appellate Division, which is difficult unless there are clearly appealable issues in a previous decision of the case.

4. A Covid Stay – Because of the recent Covid-19 pandemic, there is a hesitation at every level of the Court system to cause infected and/or high risk individuals from being cast out of their homes without time to situate elsewhere. Therefore, to the extent the tenant has a vulnerability to Covid-19 due to age, a medical pre-disposition or other factors, the Court will try to avoid causing them surreptitiously losing their home.

Warrant of Eviction –

The warrant of eviction is the legal Order signed by the District Court Judge in Nassau and Suffolk Counties or by the Housing Court Judge in NYC and gives the Sheriff or Marshall the right to conduct the eviction.  At the time of the eviction, the locks to the premises are changed, the premises may be boarded up, and the personal possessions are generally left on the curb abutting the property and/or loaded onto a moving truck and temporarily stored at the tenant’s expense.

There are two ways to stop the eviction, namely: by filing a bankruptcy petition; or be filing an Order to Show Cause in Court. In order to stop the eviction the Order to Show Cause must specifically provide for a stay or restraint on the eviction and the Order must be signed by the Judge and served before the eviction is conducted.   If the eviction has been conducted, a tenant or occupant can be restored to possession if the Judge signs an Order to Show Cause providing this relief.

The Rent Law of 2019 mandated that all Notices of Eviction in NYS must be a 14 Day Notice. This was an increase from the prior time frame, which only provided Nassau and Suffolk tenants with 72 hour notice prior to an eviction.

At the end of a landlord-tenant proceeding our firm can represent the client with an Order to Show Cause in the Supreme Court to stay an eviction. Such a proceeding has to be in the State Suprem Court becuse only they could issue a stay of eviction, as opposed to the landlord-Tenant Court which generally does not respond to Orders to Show Cause. After a Judgment is rendered in Housing Court, the Judge may stay the issuance or execution of the warrant of eviction for up to a year. In order to obtain this extension of time to vacate, the tenant/occupant of the property would need to apply for this relief pursuant to Real Property Actions and Procedures Law Section (RPAPL) 753; and would be need proof of the following:  extreme hardship, good faith efforts to find alternative housing and the lack of similar housing in the same neighborhood,   health issues, exacerbation of health condition, disruption of children’s education/schooling if forced to vacate, which is particularly a concern if the eviction is scheduled to take place during the course of the school year.

Effects of Covid-19 – moratoriums etc.

As with foreclosures, evictions in New York State have been stopped and held back with a series of moratoriums designed to allow persons to stay in their homes during the Coronavirus pandemic. Currently the moratorium expires January 1, 2020.

Governor Andrew M. Cuomo announced on September 28, 2020 that the State’s Tenant Safe Harbor Act will be expanded until January 1, 2021 to protect additional residential tenants from eviction if they are suffering financial hardship during the COVID-19 public health emergency. The Executive Order extends the protections of the Tenant Safe Harbor Act to eviction warrants that existed prior to the start of the pandemic.” https://www.governor.ny.gov/news/governor-cuomo-announces-moratorium-covid-related-residential-evictions-will-be-extended-until

Governor Cuomo first announced a State moratorium on residential and commercial evictions on March 20, 2020 to ensure no tenant was evicted during the height of the public health emergency. The Governor signed the Tenant Safe Harbor Act on June 30, 2020 which became effective immediately as well as additional legislation providing financial assistance to residential renters and landlords. Additionally, previous Executive Orders have prohibited charges or fees for late rent payments, and tenants facing financial hardship can still use their security deposit as payment and repay their security deposit over time.

Earlier in September 2020, the State’s moratorium on COVID-related commercial evictions and foreclosures was extended by Governor Cuomo by Executive Order, until October 20th. This measure extended protections already in place for commercial tenants and mortgagors in recognition of the financial toll the pandemic has taken on business owners, including retail establishments and restaurants. The new extension of this protection until January 1, 2021, gave commercial tenants and mortgagors additional time to get back on their feet and catch up on rent or their mortgage, or to renegotiate their lease terms to avoid foreclosure moving forward.

Strategy –

The strategy for a Tenant or Landlord depends on the procedural posture of the situation, and the goals, resources, options and needs of each party. Usually the tenant is trying to stay longer while the landlord is trying to cut that stay short through an eviction proceeding. For the Tenant, equity, sympathy and procedural errors by the Landlord are usually the main arguments but bargaining over rent and time may help solidify a consensual solution with the Landlord. Litigation, bankruptcy and/or negotiation options can all potentially give a Tenant additional time.

The strategy for a Landlord is the opposite and to try to reduce the time that the Tenant can obtain by being procedurally careful in the litigation and by being firm but fair in negotiations where the goal is to “box in” the tenant with consensual stipulation giving the Tenant some of the time they want/need in exchange for agreement to leave by a date certain. Generally the Landlord must realize that the Court is looking to safely resolve these situations with compromise that allows both sides to move on.

We look at dealing with matters in several Courts where needed for a Tenant in need of time: Landlord-Tenant Court for the initial defense, an Order to Show Cause seeking a stay of eviction in Supreme Court, an appeal to the Appellate Division if we are trying to appeal from a determination of the Supreme Court or Landlord Tenant Court and/or a bankruptcy case to get a bankruptcy stay and/or seek to reorganize the debt under the lease. Similarly, our skill set in numerous court settings for Landlord Tenant matters can be helpful to a Landlord in seeking eviction, possession and/or rent.

How We Can Help –

We usually are called upon by either side in a Landlord-Tenant Litigation and Negotiation to represent and advise them legally to bring matters to a resolution. Where there is an emergency, ie an imminent eviction of a vulnerable Tenant we move to get a stay by Order to Show Cause or bankruptcy to stay the eviction. Where on the other hand our client is the Landlord and the Tenant has had lots of time at the rental property without paying rent, we seek to expedite the eviction by moving deliberately and carefully and making sure that we appear to be procedurally correct and at the same time fair in our negotiated terms so that the Court grants the relief we seek. Knowing the criteria and standards of the Courts and working within that structure to obtain our clients goals are the ways we can help represent our clients whether they are the Tenant or Landlord.

Our Staffs’ Experience and Resources- 

We have significant experience with Landlord Tenant litigation, bankruptcy law, appellate representation, and negotiations and can help an individual or commercial Tenant or Landlord in most challenging situations. Because our skill set is multi-disciplinary are geared towards helping the client by addressing and resolving their problems we are an ideal firm for representing clients in Landlord-Tenant matters.

Getting Started on Consulting/ Using Us. –

We start our with a free consultation and if the client decides to move forward we start the case by internally taking in information and documentation in an intake appointment where we familiarize ourselves with the case and engage in initial discussions and strategy over the case and enter into a retainer agreement. As the case continues our representation evolves in that new developments may cause us to recalibrate and reassess options in light of changing conditions. Our clients our subject to such discussions and often engage with us in determining a course of action in a case and in deciding on future alternatives as the case progresses.  

Please call us at (631) 212-1046, or e-mail us at weiss@ny-bankruptcy.com for a free consultation to discuss such legal options in a Landlord-Tenant matter in greater detail.