Landlords in New York can’t just change the locks, toss your belongings out on the front yard, or shut down essential utilities. A landlord must follow the eviction process in order to have a tenant evicted for any reason. Here's an overview of what this means for tenants in New York.
Written by Upsolve Team.
Updated November 19, 2021
If you live in New York state and your landlord is threatening to evict you, this article is for you. We’ll address what can lead to an eviction and how the process differs for nonpayment of rent, lease violation, and lease expiration. We’ll also look at what happens after an eviction trial.
What Is Eviction?
Eviction is the legal process landlords use to remove residential tenants and renters from their homes. In New York, the landlord must first go to court and state a cause for the eviction. Before the landlord can file an eviction proceeding with the court, it must follow certain procedures. If the landlord tries to force you to move by doing any of the following, they might be liable for wrongful eviction:
Locking or removing your door,
Shutting off your utilities,
Threatening to remove you by force, or
Removing your things from your home.
Wrongful evictions are sometimes called illegal evictions or illegal lockouts. In New York, it's a criminal offense to subject a tenant to a wrongful eviction.
Who Can Be Evicted in New York?
Tenants and those living with them can be evicted. Most tenants make a lease agreement with a landlord for the landlord to provide housing in exchange for rent. If the tenant or anyone living with the tenant does something to violate the terms of the lease, the landlord may seek an eviction. If successful, the tenant and anyone living with them will be evicted, including the tenant's children, a relative, or a roommate.
In New York, lease agreements can be a written or oral agreement, but your lease must be in writing if:
Why Can Someone Be Evicted in New York?
The eviction process differs depending on the reason for eviction. There are three reasons for eviction:
You’re short, late, or behind on the rent,
You violate one of the terms of the lease other than rent arrears (past-due rent),
The lease term has ended and the landlord doesn't wish to renew the lease.
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The New York Eviction Process if You’re Late, Short, or Behind on Rent
Your landlord must go through several steps before they can remove you from your home for failure to pay rent. They can start the eviction process the first day you fall behind on the rent. The process starts when the landlord sends you notices.
What Does a Landlord Have To Do To Begin an Eviction for Failure To Pay Rent?
If you fail to pay the full monthly rent by the due date, you’re considered late on rent. At this point, the landlord must provide you with two notices. Lawmakers put these notice requirements in place as eviction protections for New Yorkers. The landlord must send you:
A late rent notice: This notice only needs to tell you that your rent is past due. It can't be sent until five days after the rent was due if you still haven’t paid. Notices must be sent by certified mail, and your landlord must send you a notice for each month you're behind on the rent.
A 14-day notice to pay the rent or be evicted: The 14-day notice will tell you that if you don’t pay the rent within 14 days, the landlord will start eviction proceedings. The notice must also show all the months and the amounts you're behind. While this can be sent on the first day you're past due, many landlords wait and send this notice with the late rent notice.
By law, the 14-day notice must be served on you personally by someone other than the landlord. It can be served to someone else living in your home, put under the door, or attached to the door, but in any of these cases, it also has to be sent by certified mail. You can't be evicted if you bring your rent current within the 14 days. While there may also be late fees or other fees such as attorney's fees, you don’t have to pay them within the 14-day period. You can’t be evicted for nonpayment of these extra fees.
A 30-day notice to pay the rent or be evicted if your landlord is a mobile home park owner and you rent a lot but own the mobile home: In this case, the landlord must give you a 30-day notice. The landlord must follow the same rules for serving 30-day notices as for 14-day notices.
The New York Eviction Process if Your Lease is Terminated or Expires
In most cases in New York, if a landlord chooses not to renew your lease when it expires, they can evict you without cause. If you live in a rent-controlled dwelling or rent-stabilized dwelling, the landlord must go through extra steps if they choose not to renew the lease. In any case, the landlord has to follow the required procedures or they may commit a wrongful eviction.
A landlord can also evict you before the lease expires if you have violated the terms of the lease even if you’re current on your rent payments. This is a lease termination. It's a good idea to read through your lease to see the potential violations that could result in eviction. Common violations of the terms of the lease include:
Violating the pets policy.
Engaging in criminal activities.
Playing loud music at night.
What Does a Landlord Have To Do To Begin an Eviction for Lease Expiration or Termination?
The landlord has to send you two notices before they can file an eviction proceeding against you for termination of the lease:
A notice to cure (if applicable), which gives you 10 days to fix (or cure) the lease violation. For example, if you have a pet that isn't allowed under your lease, and you give it away within 10 days of receiving the notice, the landlord can't file an eviction proceeding. If you decide to keep the pet, the landlord can move to the second step after 10 days.
A notice of termination, which ends the lease. This must be served on you at least 30 days before the landlord can begin eviction proceedings, and the 30-day period must end on the last day of a rental period. This notice must tell you why the lease is being terminated, what your deadline is to move out, and that the landlord will file an eviction proceeding if you don’t move out by the deadline.
If your lease is expiring and won’t be renewed, your landlord can evict you, but they’re still required to give you notice. The amount of notice is based on the length of your lease and whether your rental unit is rent-regulated. For example, if you have a two-year lease in an apartment that isn’t rent-regulated, the landlord must give you a 90-day notice if it decides not to renew the lease.
What Happens Once the Eviction Action Is Filed With the Court?
After the landlord has given you the proper notice and the notice period has lapsed, they can file an eviction action with the court if the issue hasn’t been addressed and/or you haven’t moved out. At this point, you'll receive a petition for eviction and a notice of petition. This is the same whether you’re being evicted for nonpayment of rent or because of lease termination or a violation.
The petition: In cases of nonpayment of rent, the petition will lay out what your landlord thinks you owe. It will ask the court for an eviction order and to award the landlord the back rent. Double-check that this amount only includes rent. It can't include late fees, attorney's fees, or other fees. For a lease termination eviction, the petition will explain what lease terms you violated and why the landlord wants to evict you.
The notice of petition: This tells you the date, time, and place you must appear for the eviction proceeding. The date must be 10-17 days after you receive the notice of petition and the petition. These court papers must also be served on you personally, following the same rules as the 14-day notice.
The landlord must serve you with the notice of petition and the petition under the New York rules for service of process. Just like with a failure to pay eviction, these papers must be served by someone other than the landlord and can be a combination of mailed papers and papers served on you or your residence.
Even after you've received your notice of eviction, you still have options. If you're being evicted for failure to pay rent, you can catch up on payments and stop the eviction at any time before the eviction actually occurs. You'll need to pay this money to the court, not the landlord. This way, the court knows to stop the eviction.
Preparing an Answer and Attending the Hearing
If you aren’t able to stop the eviction once you get this paperwork, you’ll need to file or an answer or prepare one to give in court. It's a good idea to file a written answer to make sure your story is well documented. If you file a written answer, you’ll still need to appear for the hearing. Your answer is where you tell your side of the story. There are two ways to answer the petition:
File a written answer with the court and send a copy to the landlord, or
Show up on the court date and orally answer the landlord's petition.
Then you need to appear at the hearing. If you fail to appear in court, the judge may enter a default judgment against you. This means the landlord wins the eviction case and can get the authorities to remove you by force.
New York provides excellent information packets for people facing eviction for nonpayment of rent and people facing eviction for a lease violation. These packages include information that explains the state’s eviction laws, your right, and sample forms to file with the court. There are orders to show cause and affidavit supporting orders to show cause at the end of the New York Court’s packets for nonpayment eviction cases and lease violation eviction cases.
Telling Your Side of the Story: Affirmative Defenses and Counterclaims
Any defense you have, whether a counterclaim, affirmative defense, or other defense should be raised in your answer. A defense refutes your landlord’s claim or provides a reason that can stop the eviction. A counterclaim is essentially suing the landlord back. The counterclaim must be related to the rental unit.
When you come to court, it's a good idea to have supporting evidence for your argument, whether you’re raising a defense or using a counterclaim. For example, if your landlord is trying to evict you for nonpayment of rent that you actually paid, you can bring bank statements showing your rent check cleared.
You may want to consult with an attorney to help you with your case. An experienced tenant's rights attorney will be able to spot defenses in your case that you haven't considered. If you can't afford an attorney, you may qualify for a free legal aid service with an eviction law attorney. But, unlike criminal cases, the court isn't required to provide you with an attorney if you can't afford one.
There are many kinds of defenses you can raise. New York provides a sample answer to help you protect your rights. For both nonpayment of rent and lease termination cases, you may be able to raise the following defenses to win the eviction case or get the landlord’s case dismissed:
You weren't properly served with the petition and notice of petition.
Your name is incorrect on the court papers.
The person that filed the eviction proceeding is not the landlord or the owner of the building.
The petition has the wrong address for your home.
You weren’t given the proper notice, or the landlord didn’t properly follow the legal timeline for eviction.
Affirmative Defenses for Nonpayment of Rent
In addition to the defenses listed above, you may have special defenses to use if you’re being evicted for nonpayment of rent. if you don't owe the amount your landlord says you owe, you should raise this as a defense in your answer. Even if owe everything the landlord says, there are other defenses you can use, including:
You didn't receive the 14-day notice, or you received it but it wasn't in the proper manner.
You received your 14-day notice, but it only gave you seven days.
You didn't receive your late notice by certified mail.
The landlord refused to accept your rent payment.
The monthly rent listed on the petition is not the correct amount.
You had to make some repairs to the rental property using your own money and the landlord didn't apply it to your rent.
You live in Section 8 housing and the landlord is evicting you for failing to pay HUD's portion of the rent.
If you live in a rent-regulated apartment, the landlord may be charging you more than the allowable amount.
Some defenses, such as improper service of notices, won't reduce the amount you owe but can get the case dismissed and buy you time to either catch up on the rent or find a new place to live. In New York, even if the landlord gets an eviction order against you and the authorities are coming to remove you, you can still pay the back rent causing the eviction to be called off. For this reason, a little extra time can make all the difference in your situation.
Affirmative Defenses for Lease Termination
In addition to the defenses outlined above, other important defenses include:
The landlord is retaliating against you for requiring the landlord to fix a problem with your rental unit.
You fixed the problem that the landlord provided the notice to cure for.
The issue the landlord gave you in the notice to cure for never happened.
Counterclaims go in your answer but act as a lawsuit against the landlord that they'll need to answer. A counterclaim won’t stop an eviction, but it may reduce the amount you owe your landlord or help get you compensation the landlord owes you. If the counterclaim shows the landlord owes you more than you owe them, then you'll receive a judgment against the landlord. Otherwise, a counterclaim may reduce the amount you owe the landlord.
For example, say the heater stopped working on a cold winter night and the landlord refused to fix it or to have someone else fix it. If you used your own money and paid the $2,000 for repairs then missed the next monthly rent payment of $1,500, the court may award you a judgment of $500 against the landlord.
In the case of no heat during the winter, even if this is your responsibility under the lease, you may still have a claim against the landlord due to a violation of the implied warranty of habitability, which applies to all rental units. This warranty can't be waived and doesn't have to be written into the lease. The warranty of habitability requires that the residence be:
Fit for humans to live in,
Fit for the uses expected by the parties, and
Not dangerous for the life, health, or safety of the occupants of the residence.
What Happens After an Eviction Trial?
The judge may decide the case immediately or may issue their decision at a later date. If the judge rules in the landlord's favor, you'll receive a notice of eviction from a law enforcement officer, which gives you 14 days to vacate the unit. On the 15th day or any time after, the sheriff's department will come and remove you and your possessions. Enforcement of an eviction order can only occur during daylight hours on a business day. If the 15th day falls on a weekend or holiday, the eviction will have to wait until the next business day.
If you didn’t file an answer or attend the hearing but you have a good reason, you can file an order to show cause and affidavit in support of the order to show cause with the court. This allows you to explain your situation to a judge. The court has the power to stay the eviction for up to one year. In an order to show cause, you can even be put back into your home after you've been removed from the home. For this to work, you must have very good reasons.
Should You Appeal Your Eviction Case?
Appeals can be expensive and usually won't stop an eviction. There are different rules for New York City housing courts along with the courts in the Long Island counties and some of the counties in the lower Hudson Valley. In these courts, you appeal to an appellate court. In the New York City courts, you must file a notice of appeal within 30 days. In the rest of the counties in New York state, your appeal will go to a higher-level county court, not the appellate courts.
The timing of when to file a notice of appeal and other important rules may depend on the local court. It's important to realize that if you file your notice of appeal after 14 days, you may have been evicted by the time your notice of appeal is filed.
You should only file an appeal if you think the judge was wrong in how they ruled on the facts of the case or wrong in the way the judge applied the law to the case. The court you appeal to will probably only consider errors in your first case. They'll use the transcript of that case to look for errors. You're probably not going to get a complete redo of the first trial. Appeals can be a time-consuming process. If you win on appeal, it will usually happen long after you've already been removed from your home.
Practical Tips for Tenants Facing Eviction in New York
It’s always best to try to settle your case if you can. You may be surprised at how far good communication and negotiating with your landlord can go. The outcome of a trial will be uncertain. Your case could go either way.
It's important to have all your ducks in a row at your eviction trial. Bring any photos, videos, documents, or other evidence that supports your case. For example, if your case is a failure to pay case, bring canceled checks and/or rental receipts with you. If your case is an eviction due to your causing damage to the apartment, bring pictures showing there's no damage.
If you can't appear on the date provided on your notice of petition, you need to take action. You can ask the landlord to agree to postpone the case. If successful, get the agreement in writing and file it with the clerk before your court date. The court will probably set a new court date when you can attend. Some courts will allow you to appear by telephone. If the landlord won’t agree to postpone, you can have another person appear for you in court and explain why you couldn't attend. You'll need a good reason for the judge to agree to give you a new court date.
If you're not ready for trial on your court date, you can ask the judge to adjourn, or postpone, the case. Even if the landlord doesn't agree, the judge must give you a new court date at least 14 days later. If you aren't ready on the next court date, you'll need a good reason, and the judge will decide whether or not to postpone again.
Tenant Resources in New York
Important links for help with your eviction case:
You can find a lawyer through the New York State Bar Association's Lawyer Referral Information Service, LawHelpNY.org
Legal Aid Organizations: Legal Aid Directory | New York, Legal Services NYC, Legal Aid Society of Northeastern New York, Legal Assistance of Western New York, Inc., Legal Services of Central New York, Legal Aid Society of Mid New York, The Legal Aid Society of Rochester, New York
Emergency Rental Assistance Program (ERAP) is a relief program that provides up to 12 months of rent relief and assistance in paying utility bills under New York’s eviction moratorium law. It was passed in response to financial hardship created from the COVID-19 pandemic. Requires renters to make a hardship declaration related to the coronavirus.