Starting a Case Outside NYC

If the tenant is not paying, you can start a nonpayment case to sue the tenant for rent. In a nonpayment case you ask the court to evict the tenant if the tenant doesn’t pay. You can start a holdover case to evict a tenant or another person (also called an occupant). A holdover case is started for a different reason than nonpayment of rent.

If someone has lived in a home for at least 30 days (with or without a lease), you can’t change the locks and throw the tenant out without coming to court. This is called an illegal eviction and is a misdemeanor. See RPAPL 768. In most cases, you have to give written a written notice to the tenant before you start the case.

 

Starting a Case for Nonpayment of Rent

The information in this section is only for cases where the tenant has not moved out and owes you rent. If the tenant has left the home for good by giving you back the keys or letting you know in writing, then you must start a civil or Small Claims case.

Whenever a tenant is 5 days late paying the rent, you must send the tenant a written notice by certified mail telling the tenant that the rent is past due. If you don’t do this and you start a case against the tenant for nonpayment of rent, the tenant can use the fact that you didn’t send this written notice as a reason why the case should be dismissed even if they didn’t pay. See RPL 235-e(d).

You also can’t start the case until after you have sent the tenant a written rent demand the way the law says. It warns the tenant that you want the rent, and that if the tenant doesn’t pay, the tenant can be evicted. The rent demand must tell the tenant the months and amounts of rent that the tenant owes. A written rent demand must be sent to the tenant at least 14 days before you can start the case. Read RPAPL 711(2). The rent demand must be delivered to the tenant the same way that the Notice of Petition and Petition must be delivered. Read RPAPL 735. There is a free DIY (Do-It-Yourself) Form program to make a written rent demand.

Note: A manufactured home park owner or operator must give a manufactured home tenant a written rent demand with at least 30 days notice. RPL 233.

If the tenant pays the full amount of the rent due before the court date, you must take the rent and end the case.

 

Starting a Case to Get Rid of a Tenant

You don’t need a reason to evict a tenant that you don’t want if the lease has ended or if the tenant has no lease. If the lease is not over you must have a legal reason to evict the tenant, like the tenant did something that is not allowed by the lease.

In most cases, you must give (serve) the tenant a written notice before you can start a case. If the tenant’s lease expired, you can start a holdover case without giving a notice first. But, if you take rent after the lease expires, then you have to serve a notice. If the tenant or occupant has no lease you must give (serve) the tenant a written notice.

There are different written notices and you must give the tenant the right one. Go to Holdover Notices to learn what to do.

 

Court Papers

A case is started with court papers called a Notice of Petition and Petition. The papers say the date, time and place (courtroom or Part) when you and the tenant have to come to court. You can buy a Notice of Petition and Petition at a legal stationery store. The court has a free DIY Form program to make your court papers to start a nonpayment case. The court also has a free program to make your court papers to start a case against a licensee. A licensee is someone that the tenant invited to live in the home without your permission. The court also has a free program to make your court papers if you have a squatter. A squatter is someone that started living in the home without anybody’s permission. When you finish the DIY Form programs you will get all your court papers and instructions about what to do next.

If you start a case you are the petitioner. A person who owns the property and is listed on the deed can be the petitioner that starts the case. If there is more than one owner of the property, only one person needs to be listed as the petitioner. The petitioner has to come to court. Other people, like a friend or relative, can’t be the petitioner instead of you.

A tenant that sublets the home, or a tenant that took in a roommate, can be listed as the petitioner in the Notice of Petition and Petition when starting a case to get someone out of the home.

You have to list all the adults that are 18 years old or older on the Notice of Petition and Petition. These people are called the respondents. If you don’t know the name of someone living there you can list that person as J. Doe, John Doe, or Jane Doe.

 

Where to Start the Case

The case is started in a court where the property is located. This means you can’t start the case where you live if the property is in another town or city. If the property is located in a city, the case is started in the City Court.

If the property is located in a town or village, the case is started in the Village Court. If there is no Village Court, the case is started in the Town Court.

If the property is located in Nassau County, the case is started in the District Court unless the property is located in Glen Cove or Long Beach. If the property is located in Glen Cove or Long Beach, you can start the case in City Court or the District Court.

If the property is located in Suffolk County in the town of Babylon, Brookhaven, Huntington, Islip or Smithtown, the case is started in the District Court in that town. If the property is located in Riverhead, Southold, East Hampton, Shelter Island, or Southampton, the case is started in the Justice court in that Town or Village.

Use the Court Locator box to help you find information about the court. Not all Village Courts handle landlord-tenant cases and the courts that do handle cases are not all open every day. Call the court to check.

 

Filing and Delivering the Papers

After you fill out the papers, you have to sign them in front of a notary and then bring them to the Court.

Remember to make copies of the Notice of Petition and Petition, any Notices that you served and Affidavits of Service of the Notices before you go to the courthouse. Give the original signed papers, not the copies, to the Clerk and pay the Filing Fee. You will have to choose a court date and the date depends on when you will be able to deliver the papers to the tenant. The Clerk can help you choose a date. The court date must be between 10 and 17 days after you finish serving the tenant. Make sure you choose a date when you know you can come to court. After you choose the date the Clerk can tell you how to conform the papers. Now the papers need to be given to the tenant.

The papers must be given to the tenant the right way and you can’t deliver the papers. This is called service of papers. If you don’t serve the tenant the right way the Judge may make you start all over again. Read How Legal Papers are Delivered.

After service of the court papers, and any mailings, you must bring back the original Notice of Petition and the Affidavit of Service to the Clerk’s Office within 3 days of the mailing or hand delivery of the papers.

Don’t miss your Court date. Read Evicting a Tenant next.