“Bringing a Landlord and Tenant Case to a Satisfying Conclusion”, a Michelle Itkowitz Lawline CLE: Making Eviction Day Happen or Preventing Eviction Day from Happening


November 2021

In this post, I provide an excerpt from my March 19, 2021 Lawline continuing legal education program entitled “New York Landlord & Tenant Litigation: Bringing the Case to a Satisfying Conclusion”. This except if from a very important section entitled “Making Eviction Day Happen or Preventing Eviction Day”.

July 2022 Quick Update: This CLE has been available for 16 months. In that time, 227 lawyers have reviewed it – giving it a 4.9 out of 5 rating!!!

A. No Self-Help Evictions in New York City

I start by stating the following definitively: You can never use self-help eviction against a residential tenant in New York City. You can NOT lock a tenant out of their apartment. In fact, this author will not use self-help against a commercial tenant either. In New York State, in the context of a residential lease, a landlord is forbidden from resorting to self-help under any circumstances and can be subject to compensatory, punitive, and treble damages. See Real Property Actions and Proceedings Law (“RPAPL”) § 853; Romanello v. Hirschfeld, 63 NY2d 613, 615 [1984].

• The only person who can put a residential tenant out of their apartment in New York City is a New York City Marshal.
• A Marshal will only evict if he has a warrant of eviction.
• A warrant of eviction will only issue when you have a judgment of possession from a court.
• A court only gives you a judgment of possession when you bring a Housing Court case against tenant.
• Therefore, you need the court case to result in a judgment of possession (as opposed to a case that gets settled with no judgment of possession), and a warrant to issue from the clerk’s office. You then need the Marshal to schedule the eviction.

B. Become Familiar with the NYC Marshal’s Handbook

Landlord and tenant practitioners should become familiar with the NYC Marshals Handbook of Regulations maintained by the NYC Department of Investigations (“Marshal’s Handbook”). https://www1.nyc.gov/site/doi/offices/marshals-handook.page. The Handbook contains a great deal of information to a lawyer working in this field. ALTHOUGH BEWARE I NOTICED THAT THE HANDBOOK HAS NOT BEEN UPDATED TO REFLECT CHANGES IMPOSED BY THE HOUSING STABILITY AND TENT PROTECTION ACT OF 2019!

C. Hardship Stays, Right to Cure RPAPL § 753, Right to Pay RPAPL § 749

As per RPAPL § 753:

(4) In the event that [a] proceeding is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a thirty day stay of issuance of the warrant, during which time the respondent may correct such breach.

Also, as per RPAPL § 753 (1) and (2), the court can stay the issuance of a warrant of eviction for up to a year in the event of hardship. What “hardship” might mean is spelled out in detail and should be reviewed by all practitioners. Although this section is not available if the judgment of possession is based upon tenant’s objectionable conduct. RPAPL § 753 (3).

The Housing Stability and Tenant Protection Act of 2019 changed RPAPL § 749 so that the no longer is the landlord and tenant relationship is terminated upon issuance of the warrant. RPAPL § 749(3) goes on to say that “…In a judgment for non-payment of rent, the court shall vacate a warrant upon tender or deposit with the court of the full rent due at any time prior to its execution,…”

D. The Marshal will not evict if she finds persons or businesses at the premises who are not listed on the warrant of eviction.

The Marshal will not evict if she finds people or business at the premises who are not named in the warrant of eviction. No one will be named in the warrant of eviction who was not named in the summary proceeding as a respondent (see Module 2 in this CLE series regarding who to name in the Petition). The Marshal’s Handbook at Ch IV § 1-2 states:

Parties to be Named Generally, all persons in possession of real property who derive their right or title to possession through the respondent (tenant) must be named in the papers. If a sub-tenant is in possession, he or she must be joined in the proceedings. If he or she is not named, such subtenant in possession may not be evicted, even though the prime tenant may be evicted. Generally, the children, spouse, or guests of a tenant need not be named.

E. Non-Military Affidavits

Pursuant to the Servicemembers Civil Relief Act (50 U.S.C. App. § 521(b); see also Military Law § 303(3)), and the rules of the New York City Civil Court, a non-military affidavit is required for every landlord and tenant proceeding affecting residential housing before a default judgment may be issued against a respondent who has failed to answer. In a 2010 case, the First Department made clear that affidavits based on conclusory statements and hearsay are insufficient. Tracey Towers Assocs. v. Cobblah, 26 Misc. 3d 132A [1st Dept 2010].

F. RPAPL § 749 and Obtaining the Warrant and Stay of Re-Letting

RPAPL § 749 governs warrants of eviction and states:

1. Upon rendering a final judgment for petitioner, the court shall issue a warrant directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated, or, if it is not situated in a city, to any constable of any town in the county, describing the property, stating the earliest date upon which execution may occur pursuant to the order of the court, and commanding the officer to remove all persons named in the proceeding, provided upon a showing of good cause, the court may issue a stay of re-letting or renovation of the premises for a reasonable period of time.

Thus, we see that once a judgment of possession is obtained in a summary proceeding for the recovery of real property, the landlord’s lawyer must ask the Marshal to requisition a warrant from the Clerk of the Court.

The court’s ability to stay re-letting is newly added with the Housing Stability and Tenant Protection Act of 2019. I am unclear where that stay can be made before the warrant is executed as well as after. The fact that the sentence is located where it is in the statute seems to indicate that the stay may be put in place before the warrant is executed.

G. Marshal’s Notice

RPAPL § 749(2)(a) states:

The officer to whom the warrant is directed and delivered shall give at least fourteen days’ notice, in writing and in the manner prescribed in this article for the service of a notice of petition, to the person or persons to be evicted or dispossessed and shall execute the warrant on a business day between the hours of sunrise and sunset.

The Marshal is required to serve tenant with a notice of eviction at least fourteen days prior to the eviction if the notice is served personally (“Marshal’s Notice”). The Marshal’s notice must state the earliest date upon which execution may occur pursuant to the order of the court.

The eviction must take place within thirty days of the service of the Marshal’s Notice or the notice must be reserved. New York City Marshals Handbook, Chapter IV, § 5-4.

The Marshal may serve the Marshal’s Notice is a court ordered stay is in place that only stays the execution of the warrant. New York City Marshals Handbook, Chapter IV, § 5-5.

H. Scheduling the Marshal

Once a good warrant has been obtained from the Clerk of the Court, the Marshal will notify the lawyer or landlord who requested it by mail. Thereafter, the Marshal must be contacted to schedule the eviction. When contacting the Marshal by email to schedule an eviction, use the available the index number and docket number for the case. The Marshal will provide a date for the eviction, which will usually be within a month. An eviction can only take place in the hours between sunrise and sunset. See RPAPL § 749.

I. Two Options on Eviction Day – Full Eviction or Legal Possession

The Marshal’s Handbook at Ch. IV § 6-4 states:

The distinction between an eviction and a legal possession is that in an eviction both the tenant and his or her personal property are removed from the premises, whereas in a legal possession the tenant is removed from the premises and his or her property remains under the care and control of the landlord as bailee for the tenant. Marshals are required to perform whichever service is desired by the landlord and may not restrict themselves to legal possessions…

In the event the landlord demands that the premises be turned over in “broom clean” condition, the marshal must conduct an eviction. The marshal must hire a bonded moving company which is licensed by the New York State Department of Transportation. The marshal must also direct the moving company to deliver the items removed from the premises to a warehouse licensed by the Department of Consumer Affairs pursuant to Title 20, Chapter 2, subchapter 28 of the New York City Administrative Code…

With respect to legal possessions, marshals are prohibited from making any arrangements with a moving company on behalf of the landlord.

At either an eviction or the delivery of legal possession, the Marshal will take an inventory of the property in the premises. Marshal’s Handbook Ch. IV § 6-5.

Typically, most landlords have the Marshal deliver only legal possession.

When the Marshal only delivers to the landlord legal possession, many people seem to think that landlord must keep the property in the apartment for 30 days. However, there is no statute that requires this. Many leases, however, do have something to say about the issue, and that is what controls in these situations. The Standard Form of Apartment Lease promulgated by the Real Estate Board of New York (“REBNY”) says at 9(B):

When this Lease ends, You must remove all of your movable property…. If your property remains in the Apartment after the Lease ends, Owner may…consider that You have given up the Apartment and any property remaining in the Apartment. In this event, Owner may either discard the property or store it at your expense. You agree to pay Owner for all costs and expenses incurred in removing such property. The provisions of this article will continue to be in effect after the end of this Lease.

This lease language is good, but it is still very prudent for landlord to maintain the personal property in the premises for at least a short period of time so that if tenant comes to retrieve the property, they are able to and thus no further litigation is engendered. This is probably where the unofficial “30-Day-Rule” comes from. If tenant does come back to get his/her things, landlord must make sure tenant is supervised when entering the premises. Landlord must not give tenant a copy of the new keys or that could possibly be construed as resurrecting the landlord and tenant relationship.

Whether the Marshal is delivering legal possession or full possession, it is useful for landlord to photograph the premises immediately after the eviction, to establish the exact state of the premises at that time.

J. Meeting the Marshal

On eviction day, arrangements must be made with landlord to have someone meet the Marshal (usually the building manager or the superintendent). The contact person’s name and contact information will need to be provided to the Marshal. Sometimes an eviction is important enough that the attorney should attend, especially if last minute negotiations are expected.

Some Marshals will change the locks for an extra charge although landlord can have someone attend the eviction that has the skills and tools to change the locks. We usually recommend that the superintendent of the building attend the eviction (whether our office comes or not) and change the locks. In that case, it is imperative that the superintendent understands that he or she must not be late.

After these arrangements are made, the Marshal should then be called to confirm that the eviction is still necessary. The Marshal will also usually call back the day before the eviction to give the scheduled time for the eviction. Landlord must be flexible with his/her schedule on eviction day because the Marshal will sometimes need to rearrange the time of the eviction at the last minute.

Landlord should be instructed to contact counsel immediately if anything happens – for example: tenant attempts to communicate with landlord or pay landlord money, or if landlord receives any court papers, such as an order to show cause to stop the eviction.

K. People in Jeopardy at the Premises During an Eviction

According to the Marshal’s Handbook at Ch IV § 6-7:

…marshals are … required, when an eviction is referred to them by a landlord or a landlord’s attorney, to find out in advance (prior to service of the notice of eviction), if the premises are occupied by any individuals unable to fend for themselves. A marshal must make a reasonable effort to obtain this information by contacting a person who is familiar with the occupants of the apartment, for example, the landlord, the landlord’s attorney, employee, or agent, or the tenant’s attorney, or the occupant’s immediate family or neighbors.

Typically, the Marshal will call Adult Protective Services, a Human Resources Administration agency.

There is an entire section of the Marshal’s Handbook about the steps the Marshal needs to take if she discovers sick and disabled children in the premises at the time of the eviction. Marshal’s Handbook Ch. IV § 6-8.

When scheduling an eviction, landlord’s attorney should be make the Marshal aware of any special circumstances that may exist in the premises. If you even suspect that someone in the premises may be unable to fend for themselves during the eviction, you must tell the Marshal.

If the Marshal is carrying out the eviction and finds a vulnerable person there, she may call off the eviction. The Marshal’s Handbook goes on to say at Ch. IV § 6-7:

At times, a marshal may be incorrectly advised that the occupants of the premises do not include any individuals who are unable to fend for themselves. If a marshal appears at the eviction site and discovers mentally ill, handicapped, elderly, or other persons unable to take care of themselves, who have not been brought to the attention of the Department of Investigation and the appropriate social welfare agency, he or she must immediately notify the Department of Investigation and postpone the eviction. As described above, the Department of Investigation will notify the appropriate social welfare agency and advise the marshal to reschedule the eviction for approximately two weeks later in order to give the appropriate social welfare agency an opportunity to provide assistance to the occupant who appears to be unable to fend for himself or herself.

L. Schools, Day Care Centers, Senior Facilities

There is a section of the Marshal’s Handbook that gives guidance to Marshal’s regarding evicting schools, day care centers, or senior facilities, so as to avoid exposing children or seniors to unnecessary risks or disruptions. Marshal’s Handbook Ch. IV § 6-9.

M. Pets and Companion Animals

If tenant has pets, the Marshal should be told so that arrangements can be made with Animal Rescue to place the pets in a safe environment. The Marshal’s Handbook at Ch. IV § 6-10 states:

If the Marshal finds any living animals in an apartment where he is enforcing a warrant, he must notify Animal Rescue to remove such animals. Section 355 of the Agriculture and Markets Law states that, “A person being the owner or possessor, or having charge or custody of an animal, who abandons such animal, or leaves it to die in a street, road or public place…is guilty of a misdemeanor.”

RPAPL § 749(2)(b) states:

Such officer [Marshal] shall check such property [where an eviction is being conducted] for the presence of a companion animal prior to executing such warrant and coordinate with such person or persons to be evicted or dispossessed to provide for the safe and proper care of such companion animal or animals. If such persons to be evicted or dispossessed cannot be found after reasonable efforts are made to coordinate with such persons, or if such person is found and declines to take possession of such animal or animals, such officer shall promptly coordinate with the duly incorporated humane society, duly incorporated society for the prevention of cruelty to animals or pound maintained by or under contract or agreement with the municipality in which the animal was found for the safe removal of such companion animal or animals. Such officer shall make reasonable efforts to provide notice to the person or persons to be evicted regarding the location of such companion animal or animals. Disposition of such companion animal or animals shall be in accordance with the provisions of sections one hundred seventeen and three hundred seventy-four of the agriculture and markets law, and all other laws, rules and regulations that govern the humane treatment of animals. “Companion animal,” as used in this paragraph, shall have the same meaning as provided in subdivision five of section three hundred fifty of the agriculture and markets law.

N. Controlled Substances – Pharmacies and Doctor’s Offices

Recently I was attempting to schedule an eviction of an abandoned doctor’s office. I altered the Marshal that I thought he would have to contact the Federal Drug Enforcement Administration, which is required by the Marshal’s Handbook before executing a warrant of eviction at a premises used for a business or a profession involving the authorized sale or dispensing of controlled substances, such as a medical office or pharmacy. Marshal’s Handbook, Ch. IV § 6-17.

O. Notification of Location of Property – Laundry Mats

The Marshal’s Handbook at Ch. IV § 6-13 states:

If an eviction or legal possession prevents customers from retrieving personal property from a business such as a laundromat, the marshal must post reliable contact information for customers to utilize to retrieve their property.

P. Show Cause Orders

Orders to show cause staying an eviction brought by a tenant and served upon the Marshal will immediately halt an eviction. Marshal’s Handbook Ch. IV § 6-11.

If tenant goes to a judge and can show a possible reason why they should not be evicted, the court in most instances will grant tenant’s application by order to show cause to temporarily stay the eviction, pending a court hearing on why tenant should not be evicted.

1. Service of An Order to Show Cause is Important

Service of the order to show cause will be required upon the Marshal and landlord’s attorney. Often pro-se, less sophisticated tenants botch the service of the order to show cause by serving it too late. A court will have to deny tenant’s application for more time if the order to show cause is served late. However, it might not always be the best course of action for landlord to have an order to show cause that was untimely served denied on that basis, because there is a likely possibility that tenant will just go back to court seeking another order to show cause and further delay any possible eviction. This may not be the case, however, if tenant has done other orders to show cause and the all the tenant’s leeway with the court has been exhausted.

2. Check Stays in Order to Show Cause Carefully

Landlord’s attorney should carefully check what stays are provided for in an order to show cause and should not assume that the judge stayed the eviction. It is not typical, but also not unheard of, for a judge to allow tenant to make an application, but nevertheless to allow the eviction to go forward. If this is the case, it is important to point this out the Marshal, so the eviction is not canceled.

3. Post-Eviction Order to Show Cause

Even after the eviction occurs, tenant may still have one last chance to regain possession. tenant can go to the court and apply for a post-eviction order to show cause, showing a judge that he has some or all the money or present another reason why he was wrongfully evicted. If a judge signs a post-eviction order to show cause, the court will usually stay landlord from taking any further action in relation to the premises, such as efforts to re-let the space or conducting any further renovation/construction. A general rule is that the longer a tenant waits from the day of eviction to get the post-eviction order to show cause, the less likely it is to be granted.

Q. Good Cause Shown to Vacate the Warrant and Payment

RPAPL § 749(3) states:

Nothing contained herein shall deprive the court of the power to stay or vacate such warrant for good cause shown prior to the execution thereof, or to restore the tenant to possession subsequent to execution of the warrant. In a judgment for non-payment of rent, the court shall vacate a warrant upon tender or deposit with the court of the full rent due at any time prior to its execution, unless the petitioner establishes that the tenant withheld the rent due in bad faith. Petitioner may recover by action any sum of money which was payable at the time when the special proceeding was commenced and the reasonable value of the use and occupation to the time when the warrant was issued, for any period of time with respect to which the agreement does not make any provision for payment of rent.