Nicholas M. Moccia, P.C.
Attorney at law

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Staten Island Foreclosure & Alternatives Law Blog

3 Things To Know About Holdover Proceedings

A building owner may commence a holdover against individuals or business who are not entitled or no longer entitled to occupy a piece of real estate. However, be aware that if you fail to heed the following 3 cautions, you will significantly delay the eviction.

Prior to the Proceeding

In most instances, you must give your tenant (or unauthorized occupant who is not a tenant) written notice. The nature of the relationship will determine what type of notice and what sort of notice you are required to give the tenant or unauthorized occupant. You would do well to consult an experienced landlord/tenant attorney in order to receive guidance as to what sort of notice is required, what the notice must say by law, and how much time give to vacate. For instance, a month-to-month tenant must receive a 30-day termination notice; however, you do not give the tenant 30 days from the date he receives the notice. The tenant gets 30 days from the date his next rent is due--usually (but certainly not always) the 1st of the upcoming month. In New York City, you should use a process server, licensed by the Department of Consumer Affairs to serve (i.e. to deliver in the legally correct way) the termination notice. There are strict rules on how this initial notice must be delivered to the tenant. This first step is crucial, and if done improperly, the Court will dismiss your case and you will need to start from scratch. This will could cost you several months' worth of time and rent.

Initiating the Proceeding

In New York City, to begin a holdover proceeding you must file a Notice of Petition and Verified Petition with Civil Court, and pay appropriate filing fee--$45.00 as of the writing of this article. You must attach a copy of your termination notice, together with affidavits of service for the same, to your Verified Petition.

You must file your papers in the court that is located in same county as your property--i.e. if the property is in Staten Island, you file your papers in Civil Court located at 927 Castleton Avenue, Staten Island, New York 10304. Once you file your Notice of Petition, Verified Petition and supporting papers and pay the filing fee, the Clerk will tell you when your first court date will be. He will write the court date on the Notice of Petition. If the landlord is a corporation or limited liability company, the landlord must appear with an attorney on that date.

After filing your papers with the clerk, you must then have a licensed process server serve a confirmed copy (i.e. a copy with the clerk's stamp and the court date) of the Notice of Petition and Verified Petition with all attachments on each tenant or occupant. You yourself cannot serve the papers, and it would be wise to use an experienced, licensed process server to take care of this for you. Service can be completed by personal delivery, substituted service or conspicuous place service. Each method has very strict requirements for the service to be valid, and for this reason, you must hire a professional process server. If this is done incorrectly (and it is inevitable that you will make an error if you have never done this before), your case will be dismissed, and this will cost you time and money.

On the Court Date

On the first court date, typically you will sit with your tenant and the judge's law clerk who will encourage the parties to settle. If settlement is not possible, the case will be adjourned for further conferencing and eventually a trial. You should not expect to have a trial on the first court appearance. Whenever possible, you should try to settle the case.

It is wise to have an attorney assist you with a holdover. One misstep could result in the case being dismissed. This is definitely not the place to be penny wise and dollar foolish. Regardless of what stage you are at, give us a call and we will walk you through the process.

Just as every piece of property is unique, each instance of litigation for a piece of property is unique - and not every lawyer has experience handling such litigation. Using the legal process to achieve your strategic objectives involves much more than paper pushing. It requires an understanding of how New York City and New York State law is applied to your specific case.

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