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Answers To Frequently Asked Questions Regarding New York Summary Eviction Proceedings Based On Non-payment Of Rent

Can a landlord bring a summary non-payment proceeding to collect past-due rent from a tenant who has already vacated the rented premises?

No. Non-payment summary proceedings may only be brought against tenants who are in possession of the premises or who exercise dominion over the property at the time that the summary proceeding is commenced. See, First National City Bank v. Wall Street Leasing Corp., 80 Misc.2d 707, 363 NYS2d 699). A tenant’s return of the keys to the landlord constitutes “an act evidencing an intent to offer a surrender.” Id. Under such circumstances, a landlord is not permitted to use the expedited remedy of a summary/special proceeding as a method to obtain a judgment for the past-due rent. Instead, the landlord must bring a regular, plenary action, against the tenant.

Does a landlord’s failure to provide essential services or repairs constitute a defense to a commercial non-payment proceeding?

Unless a commercial tenant has been forced to relinquish possession of the rented premises, the tenant may not assert, as an affirmative defense to landlord’s nonpayment claim, that the landlord has failed to provide repairs or services. See, Walsam Fifth Avenue Development Co. v. Lions Gate Capital Corp., 623 N.Y.S.2d 94 (NY County Civil Court, 1995). It should be noted that the laws governing residential tenancies are different, and significantly more favorable to tenants.

Is a landlord permitted to bring a summary non-payment proceeding before it has demanded payment of the allegedly past-due rent?

No. RPAPL §711(2) provides that a summary proceeding may be brought when “the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made ...” A jurisdictional prerequisite to the bringing of a nonpayment petition is demanding the rent. Severin v. Rouse, 134 Misc.2d 940, 513 N.Y.S.2d 928 (NY County Civil Court 1987). A landlord cannot sue for rent that was not demanded, and part of the landlord's prima facie case consists of proving that the rent sued for was properly demanded. An ordinary rent bill, delivered in the normal course of business, does not satisfy the jurisdictional requirements of a rent demand.

Does a written rent demand need to be signed to satisfy the requirements of RPAPL § 711?

Tenants frequently raise, as affirmative defenses to non-payment proceedings, that the contents of a rent demand are legally insufficient, or that the rent demand was not served in the manner required by New York law. Courts have generally held that the “signature” on a rent demand may be typewritten. See, Kismet Management Corp. v. Great Neck Retail Supply Corp., 910 N.Y.S.2d 405 (Dist. Crt. Nassau Cty. 2010). In L & B 595 Madison Inc. v. Susan Sheehan, Inc., NYLJ, August 31, 1994, page 22, col.6, the Civil Court, New York County held that not only does RPAPL 711(2) not require a signature, but that under New York General Construction Law § 46 a typewritten signature is clearly valid. The foregoing notwithstanding, a landlord should sign the rent demand so as to avoid being forced to litigate that issue.

Where is a summary proceeding for possession of real property commenced?

A summary (also known as “special”) proceeding to recovery real property may be maintained in a county court, town or village court, court of general jurisdiction, or district court, where the property is located. In special proceedings involving property in the City of New York, the a special proceeding to recover possession of real property (nonpayment; holdover) is filed in the Civil Court of the City of New York.

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