LANDLORD
& TENANT
GUIDE TO EVICTIONS
By
Ronald J. McGaw, Esq.
Former
Judge
City
of Poughkeepsie Court
1996
– 2006
© Copyright 1997 Ronald J. McGaw
All
Rights Reserved
1. A SUMMARY PROCEEDING MAY BE BROUGHT ONLY IN THE NAME OF THE LANDLORD, except as otherwise provided by statute.
2.
ONLY LICENSED ATTORNEYS
may appear and represent parties in Court in regard to summary proceedings. Agents, relatives, friends, roommates, managers, corporate
officers, or others not licensed to practice law may not appear to either
prosecute or defend any summary proceeding.
Only named parties themselves may appear without counsel.
3.
PRE-PETITION NOTICE, WHICH IS
REQUIRED, MAY BE MADE IN EITHER OF TWO WAYS
A.
WRITTEN PRE-PETITION NOTICE/DEMAND
i.
Where a written pre-petition notice/demand for overdue rent is served,
such notice/demand must be served in the same manner as the petition and notice
of petition. Service of written
pre-petition notice/demand (i.e., 3-day notice, 30-day notice, etc.) by mail
alone is insufficient. In addition,
service of written pre-petition notice/demand must be by a proper non-party, not
by the landlord.
ii.
Where a written pre-petition notice/demand is served, an affidavit of
service must be filed with the Court before a default judgment will be issued
(except as set forth below).
iii.
As an alternative to filing an affidavit of service, the petition itself
may allege that a written pre-petition notice/demand was served.
Such an allegation, however, must specify in what form the notice/demand
was made and how it was served. A
bare allegation in the petition that pre-petition notice was served is
insufficient. In addition, where
such an allegation is challenged, proof of service will be required.
Proof may consist of either a proper affidavit or testimony.
B.
ORAL PRE-PETITION NOTICE/DEMAND
i.
An oral demand for overdue rent constitutes valid pre-petition notice to
the tenant. An oral demand may be made either in person or by telephone,
but must be made prior to the commencement of the action.
ii.
Where an oral pre-petition demand for overdue rent is made, the petition
itself must allege that fact. Such
an allegation must specify the particulars of the demand and how it was made.
A bare allegation in the petition that an oral pre-petition demand was
made is insufficient. In addition,
where such an allegation is challenged, proof of the demand will be required.
Proof must be in the form of testimony.
An affidavit is not sufficient to prove an oral demand.
4.
THE PETITION MUST BE VERIFIED,
unless verification is expressly waived by the tenant.
A.
FOR INDIVIDUAL LANDLORDS, the petition must be verified by:
i.
the landlord
ii.
an attorney, or
iii.
the landlord’s authorized agent
B.
FOR CORPORATE LANDLORDS, the petition must be verified by:
i.
a corporate officer, or
ii.
an attorney
5. SERVICE OF THE NOTICE OF PETITION AND PETITION must be made no less than 5 days, and no more than 12 days, before the hearing.
6.
SERVICE & JUDGMENT
REQUIREMENTS
A.
PERSONAL SERVICE = possession & money judgment
i. SUBSTITUTE SERVICE = judgment for possession only may be granted, unless the affidavit of service shows at least two attempts to serve personally outside of normal working hours. Possession & money judgment may be granted upon such a showing.
ii.
CONSPICUOUS PLACE (NAIL & MAIL) SERVICE = no judgment of any kind may
be granted unless the affidavit of service shows at least two attempts to serve
personally outside of normal working hours.
Possession & money judgment may be granted upon such a showing.
7. CLAIMS FOR BACK RENT OF MORE THAN 3 MONTHS may be deemed stale by the Court unless a satisfactory explanation is provided as to the reason for the delay in making such claim.
8.
CLAIMS FOR PARTIAL RENT
should not be made (except for the most recent month claimed).
Landlords should instead apply all monies paid to the previous unpaid
balance, and provide a complete accounting of same to the Court.
9. ATTORNEYS FEES AND OR LATE CHARGES should not be claimed, unless:
A.
The tenant has previously agreed to same in a written lease or rental
agreement;
B.
Copies of the lease or rental agreement are submitted to the Court with
the pertinent provisions highlighted in yellow; and
C.
The amount of the attorneys fee, or the dates of each late fee, are set
forth in detail in the petition.
10.
REQUESTS TO VACATE DEFAULT
JUDGMENTS may be made by filing with
the Court an “Order to Show Cause” or “Motion to Vacate,” along with an
affidavit signed by the tenant setting forth:
A.
The reasons for the tenant’s failure to appear, and
B.
A detailed explanation of the tenant’s legitimate defense to the
action.