Landlord and Tenant Law
To initiate a summary proceeding, a petition and notice of petition are filed with the court. The party commencing the summary proceeding is the "petitioner," and the party against whom the petition is filed against is the "respondent." There are two main types of summary proceedings: holdover proceedings and nonpayment proceedings.
A holdover proceeding is commenced against a tenant who remains or continues in possession of the premises, after the expiration of his or her lease or tenancy, without the landlord's consent.
Notice of Termination. Notice is usually required in most holdover proceedings. In some cases, a landlord may also need to serve a notice to cure, allowing the tenant a period of time to correct the claimed defect or condition before a termination notice is given.
Notice of Petition. For a proceeding for non-payment of rent, the notice of petition shall specify the time and place of the hearing on the petition, and state that if respondent fails to interpose and establish any defense at that time, the respondent may be precluded from asserting such defense or the claim on which it is based in any other proceeding or action. Outside of New York City, the notice of petition may be signed by the issuing attorney, a judge, or a clerk. A notice of petition and petition must be served at least 5 days and not more than 12 days before the return date, exclusive of both the day of service and the appearance date.
Petition. The petition is similar to a complaint in a plenary action. The petition shall be verified by an authorized person and shall:
- State the interest of the petitioner in the premises from which removal is sought;
- State the respondent's interest in the premises and his relationship to petitioner with regard thereto;
- Describe the premises from which removal is sought;
- State the facts upon which the special proceeding is based; and
- State the relief sought. The relief may include a judgment for rent due, and for a period of occupancy during which no rent is due, for the fair value of use and occupancy of the premises if the notice of petition contains a notice that a demand for such a judgment has been made. RPAPL § 741.
The respondent is entitled to file an answer. The answer may contain any legal or equitable defense, or counterclaim. The court may render an affirmative judgment in favor the of respondent on his or her counterclaim. A respondent in an holdover proceeding, or in a nonpayment proceeding outside New York City, may personally appear without serving and filing a written answer.
A nonpayment proceeding may be maintained if: (1) the tenant has defaulted in the payment of rent; (2) there is an oral or written agreement for possession; and (3) a demand for payment (at least three days) has been made stating a good-faith approximation of the amount due for each period.
Rent Demand. A rent demand (oral or written), must give "actual notice of the alleged amount due and of the period for which such claim is made." Rent should be broken down by month and not listed as a single lump sum amount for numerous months. A three-day notice must specify the number of days from the service of the notice within which the tenant must make payment of the rent arrears or surrender the premises. A rent notice must require, "in the alternative, the payment of the rent, or the possession of the premises." RPAPL § 711(2).
Notice of Petition and Petition. If tenant does not pay amount demanded or surrender possession of the premises, landlord must serve a notice of petition and petition pursuant to RPAPL § 735 . Where a personal demand for rent is alleged, the entry of a default judgement must be supported by a petition or affidavit sworn to on personal knowledge.
Default by Respondent. If a respondent fails to answer or appear in a nonpayment proceeding, and if the petitioner has a right to collect rent at the time of default, the petitioner may apply for a default judgment and warrant.
Warrant. The issuance of a warrant terminates the agreement under which the tenant held the premises and the landlord and tenant relationship, but it does not prevent the court from vacating the warrant for good cause shown prior to the execution thereof. RPAPL § 749.
Settlements. Most landlord-tenant disputes will settle before going to trial. Stipulated agreements are favored by the court because:
- They reduce the court's calendar;
- They help avoid damage to the rental property (tenants who are given a little more time and a certain "out date" are less likely to be destructive to the rental property);
- They allow the landlord to collect some back rent through repayment agreements. Repayment agreements give cash back to the landlord as opposed to a money judgment.
- They help reduce dismissals and refiling. At times, defects in the petition may result result in dismissal of the case by the court; however, landlord's faced with certain dismissal and additional refiling and service fees are more willing to enter into a repayment plan or provide the tenant more time to move.
The court has a duty to explain the stipulation to every pro se litigant.
Trial. Where there are triable issues of fact, they shall be tried by the court unless, at the time the petition is noticed to be heard, a party demands a trial by jury, in which case trial shall be by jury.
Warrants of Eviction. After a warrant of eviction has been issued, the officer to whom the warrant is directed and delivered shall give at least seventy-two hours (72) notice (excluding any period which occurs on a Saturday, Sunday or a public holiday) before removal.
Warranty of Habitability
Every residential lease contains an implied warranty of habitability, which provides that residential areas be fit for human habitation and be free from dangerous, hazardous, or unhealthy conditions. In a summary proceeding, if a tenant alleges a habitability issue, the tenant must be able to provide sufficient evidence to support their claim. If a landlord does not fix a habitability breaching condition, the tenant may withhold rent and assert the breach as a defense to a nonpayment proceeding.
City of Buffalo Housing Court
The Buffalo Housing Court was established to improve the quality of housing in the City of Buffalo by enabling stricter, more effective enforcement of housing standards. The court was also given the authority to develop innovative ways to deal with the thousands of code violation and eviction cases it handles every year.
In Buffalo Housing Court, a referee will often hear cases if they do not settle. The parties may consent to have the court referee decide some or all relevant issues. If the parties do not consent, the court referee hears the case and issues a report and recommendation to the court.
Money Judgements and Appearances. A money judgment will be will be award by the court after a default in any case in which the tenant is served by any of the following means: (1) personally, (2) by substituted service to a person of suitable age and discretion, (3) by due diligence (three attempts) service.
Out Dates. Warrants are executed by the Buffalo City Court Marshal's Office. Warrants are generally executed seven to 10 days following the payment of the marshal's fees. Once the fee is paid, the marshal will post a 72-hour notice at the premises. This is the minimum notice required by law and does not advise the tenant when the eviction will actually occur.
Justice Courts (Local Courts)
A Justice Court has jurisdiction over property located in whole or in part within the city or municipality where it is located. Town and Village Courts hear actions seeking monetary awards up to $3,000 and small-claims actions for awards up to $3,000. These courts also handle landlord-tenant proceedings that may result in an eviction or a money judgment for rent arrears. Summary proceedings are part of the regular town court calendar, so extra care should be taken with regards to properly filing papers.