The Process Due When Rent Is Due: Residential Nonpayment Evictions in New York After COVID-19

By William J. Niebel

The Process Due When Rent Is Due: Residential Nonpayment Evictions in New York After COVID-19

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As a result of moratoria at the state and federal levels, most evictions for unpaid rent in New York have been on hold since the beginning of the COVID-19 pandemic in March 2020. However, these eviction bans are fragile and not absolute. The New York moratorium (the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, or CEEFPA) was set to expire on August 31, 2021. But on August 12, the United States Supreme Court enjoined enforcement of its eviction-preventing provisions.[1] The federal moratorium, originally issued by the Centers for Disease Control and Prevention (CDC) in 2020, expired on July 31, 2021, but was replaced by a more limited one on August 3, 2021. It is set to expire in less than two months, on October 3, but is currently being challenged in the courts and appears to be on life support – it may not last another week. And while it is in effect, the CDC moratorium only prevents some evictions in some counties.[2]

Though it is true there is financial assistance available for rental arrears, this will only help a fraction of the tenants who need it. Therefore, as the bans on eviction begin to expire, a wave – or tsunami – of nonpayment cases is expected. At this critical juncture, to prevent homelessness and the unnecessary displacement of families, it is imperative to review New York nonpayment eviction law, with a focus on the procedural protections available to tenants.

Additionally, New York’s Housing Stability and Tenant Protection Act (HSTPA) of 2019 dramatically changed the eviction process only months before the pandemic hit.[3] And laws enacted during COVID-19, such as the Tenant Safe Harbor Act,[4] will continue to affect housing practice going forward. Thus, for the benefit of judges and advocates alike, it is important to highlight the unsettled issues that must still be litigated.

This article will consider the New York nonpayment eviction process chronologically. It will first address the pre-commencement[5] notices to which tenants are entitled. Then it will discuss the court eviction proceeding and warrant[6] process, with an emphasis on tenant protections that are built into the law. Again, because some of these provisions are so new, this article will flesh out some arguments that are untested in the courts.

Pre-Commencement

Summary eviction proceedings in New York are governed by Article 7 of the Real Property Actions and Proceedings Law (RPAPL). Section 711 of the RPAPL provides: “No tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding.”[7] This means that self-help eviction[8] of a tenant is illegal in New York. In fact, it is a crime under RPAPL § 768.[9] The only lawful way to evict a tenant for nonpayment of rent is through a summary proceeding based on RPAPL § 711(2), which contains the appropriate cause of action.[10]

The 14-Day Notice

Before commencing a nonpayment eviction case in court, a landlord must serve a written 14-day rent demand.[11] Since the HSTPA went into effect, landlords can no longer use a three-day notice of unpaid rent or an oral rent demand.[12] One might ask: What is the earliest date on which the 14-day notice can be served? Under the statutory language, a tenant must be in default when the notice is served.[13] If rent is due on the first of the month, the notice may not be served on the first because the tenant is not in default until after the first. But is the tenant in default on the second day of the month? Multiple lines of reasoning suggest that the answer is no and that the tenant is not in default until the seventh day of the month (six days after the rental due date). To understand why, it is necessary to first analyze a new provision created by the HSTPA: Real Property Law (RPL) § 235-e(d).[14]

The RPL § 235-e(d) Notice and the New Five-Day Grace Period

A landlord/lessor has a duty, under RPL § 235-e, to provide a written receipt for the payment of rent.[15] In addition, the new subsection (d) requires a landlord to provide a written notice, by certified mail, if rent is not received “within five days” of its due date.[16] This provision was enacted to improve and formalize rent recordkeeping.[17] The Legislature included an enforcement mechanism by providing that failure to give such a notice “may be used as an affirmative defense by such lessee [i.e., tenant] in an eviction proceeding based on the non-payment of rent.”[18] If this defense is established by the tenant, the court should dismiss the case.[19] Courts should not allow landlords to evict for nonpayment if they fail to follow these enhanced recordkeeping requirements, assuming the deficiency is raised as an affirmative defense. Ultimately, while this new notice (commonly called a “five-day notice”[20]) is not a predicate notice in the technical sense,[21] landlords should have properly served one (or more, for multiple months of unpaid rent) prior to commencing an eviction.

Significantly, this new statutory provision appears to recognize a five-day grace period to pay rent. If rent is due on the first of the month, the five-day notice cannot be given until the seventh, because all the days up to and including the sixth are “within five days” of the rental due date.[22] One might ask: Can the 14-day notice simply be served six days after the rental due date, and thus double as the five-day “written notice stating the failure to receive such rent payment” under RPL § 235-e(d)?[23] No, for at least four reasons.

First, basic rules of statutory construction indicate that this new provision in the Real Property Law creates a new and additional notice.[24] The new provision must be read and understood in a way that gives it meaning, not one that renders it superfluous. Second, the notices serve different purposes. The five-day notice requirement applies to tenancies at all times, regardless of whether a nonpayment eviction is contemplated, and it functions to formalize rent recordkeeping – to keep the landlord and tenant “on the same page.” The 14-date notice sets the stage for a summary eviction proceeding. Third, the statutes require these notices to be served in different manners.[25] Fourth, if it could double as a five-day notice, this would essentially write the affirmative defense out of the statute; there would be virtually no scenario in which to raise it. This is because, in every viable nonpayment case, a 14-day notice will have been served. For all these reasons, the 14-day notice and five-day notice are separate and distinct, and both should be properly served prior to the commencement of a nonpayment eviction proceeding.

Next, let us consider additional statutory support for the new five-day rent grace period. The HSTPA also created RPL § 238-a, which limits certain fees that can be charged in the landlord-tenant context. Subsection 2 specifically provides that no late fee can be charged “unless the payment of rent has not been made within five days of the date it was due, and such payment, fee, or charge shall not exceed fifty dollars or five percent of the monthly rent, whichever is less.”[26] Again, a five-day grace period is built into the law. This specific section indicates that rent is not “late” (in default) unless it is paid more than five days after the due date.[27] Reading all these statutes together, and harmonizing them, it is logical to conclude that the 14-day notice should not be served until at least six days after the rental due date, just like the five-day notice. If rent is due on the first day of the month, the earliest time at which these notices can be properly served is the seventh day. And if either notice is served prematurely, a subsequent nonpayment proceeding should be subject to dismissal.[28]

The Summary Proceeding

A summary eviction proceeding is commenced using a notice of petition and petition.[29] In city courts, the proceeding is commenced upon filing, with service to follow.[30] In justice (town and village) courts, the order is reversed; the case is commenced upon service, with filing to follow.[31]

What Is Rent?

The HSTPA made clear, by enacting RPAPL § 702, that “[n]o fees, charges or penalties other than rent may be sought in a summary proceeding.”[32] Thus, only unpaid rent can be used as a basis for a nonpayment proceeding, and rent is defined as “the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement.”[33] In the recently decided case of Beco v. Ritter, the Appellate Division, Third Department, confirmed that late fees and other charges cannot be disguised as rent and used as a basis for a nonpayment proceeding.[34]

In Beco, the landlord, specifically in response to the enactment of the HSTPA, attempted to raise his tenants’ rent by $375 but stated that they would receive a “discount” of the same amount if they paid their rent by the 17th of the month.[35] The Court found this an attempt to circumvent the late fee limitation in RPL § 238-a(2), and to build other administrative fees into the “rent,” in an effort to recover these in a summary eviction proceeding. The court unanimously held this discount scheme illegal and unenforceable.[36]

Attorneys’ Fees

When it comes to seeking attorneys’ fees in particular, one could assume that this is not permissible, based on the plain language of RPAPL § 702,[37] and this may well be the case. However, RPL § 234 predates the HSTPA and continues to provide for a reciprocal right to recover attorneys’ fees in summary eviction proceedings. It states:

“Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant . . . .”[38]

Significantly, the HSTPA added the following clause to the statute: “A landlord may not recover attorneys’ fees upon a default judgment.”[39] This all seems to indicate that a landlord can recover attorneys’ fees in certain cases.[40] Still, RPAPL § 702 was enacted to end the practice of labeling items as “additional rent” in a lease, and this seems to invalidate one of the underpinnings of the reciprocal attorneys’ fees law.[41] Ultimately, it seems clear that a court may not grant a nonpayment judgment and issue a warrant of eviction based on unpaid attorneys’ fees. And a tenant may not be required to pay them to prevent eviction. However, a landlord (or tenant) may be able to obtain a money judgment for attorneys’ fees, either as an ancillary judgment in a nonpayment proceeding or in a separate plenary action.

The Petition, Answer, and Motions

The petition must contain the elements found in RPAPL § 741, and shall be verified as required by that section, as well as the New York Civil Practice Law and Rules (CPLR) 3020–3022. Pursuant to the HSTPA, the notice of petition and petition must be served 10 to 17 days (instead of the previous five- to 12-day range) before the time at which the petition is noticed to be heard.[42] The tenant can answer at the time of the hearing, or before, but may not be required to answer prior to the hearing.[43] The tenant may also make motions (for dismissal, summary judgment, etc.) at the time of the hearing or before.[44] If a written motion is filed before the hearing, the motion must be set for hearing at the same time as the petition.[45]

The Right to an Adjournment

The right to one mandatory (i.e., non-discretionary) adjournment, for a minimum of 14 days, was created by the HSTPA[46] and was a game changer, primarily for tenants. Since tenants usually do not have counsel at the initial appearance, this gives them an opportunity to seek representation and more adequately prepare to raise defenses or counterclaims.[47] It also builds time into this summary process for the tenant to come current with the rent or arrange to move out. Subsequent adjournment requests can also be made, and granted in the court’s discretion.[48]

The prefatory clause in RPAPL § 745 could be read to require that “triable issues of fact [be] raised” for the first adjournment to be granted. That said, since the statute also states that subsequent adjournment requests are discretionary, the implication is that the court does not have discretion to deny a first adjournment request. Further, in practice, some issue of fact almost always exists, unless the tenant appears and states: “I fully agree I should be evicted.” And even in that unusual scenario, if the tenant requests an adjournment, it should be granted, so that the tenant can consult with an attorney to better understand whether there are relevant issues of fact, or other defenses, to raise. Considering the legislative intent to protect tenants, it would seem odd that those (especially unrepresented tenants) who do not artfully raise issues of fact would lose the right to an adjournment. For all these reasons, courts have not been requiring a detailed statement/showing of alleged issues of fact to support a request for a first adjournment.[49]

The Right to a Jury Trial

A related question arises with respect to the trial. A tenant generally has the right to a jury trial where there are issues of fact,[50] unless the right has been knowingly and voluntarily waived in the lease between the parties.[51] One must be requested “at the time the petition is noticed to be heard.”[52] Before the HSTPA, the deadline for requesting a jury trial was understood to be the initial appearance in a nonpayment case, when issue was joined and the case could potentially proceed straight to trial.[53] But, considering the new right to a mandatory adjournment, does a jury trial still need to be requested at the initial appearance in a nonpayment proceeding, lest it be waived? Or can it be requested at a subsequent appearance? Again, it is useful to consider this question from the perspective of an unrepresented tenant, who may not even know about the right to a jury trial. Should the tenant really be required to request a jury trial at the first appearance so as not to waive the right? If the tenant is represented by counsel at the initial appearance, it may make sense for the attorney to go ahead and assist the tenant in electing between a bench or jury trial, for the sake of judicial economy. However, the tenant should no longer be required to make this election at the first appearance if the case is adjourned pro forma. The adjournment effectively changes the time at which the petition is noticed to be heard (the deadline to request a jury trial). Thus, the tenant should be able to request a jury trial at a subsequent appearance, before the case proceeds to trial.

The Right To Pay and Stay

Pursuant to the HSTPA, if the tenant pays the full amount of rent due to the landlord at any time before the trial, it “shall be accepted by the landlord” and this payment “renders moot the grounds on which the special [nonpayment] proceeding was commenced.”[54] Further, it is well established that full payment at the time of trial is a complete defense, resulting in dismissal.[55] But if the case is not resolved by payment, settled, or dismissed on other grounds, it comes on for trial. The court determines how much rent, if any, is owed to the landlord and must consider defenses and potential offsets in making its decision.

The Tenant Safe Harbor Act of 2020

Generally, if some amount of rent is adjudged to be owed to the landlord and not paid at the time of judgment, a warrant of eviction may issue.[56] However, one defense that will be particularly relevant in many soon-to-be-heard nonpayment cases is found in the Tenant Safe Harbor Act (TSHA), which was enacted during the COVID crisis.[57] Under this law, tenants who “suffered a financial hardship during the COVID-19 covered period” shall not be evicted for “non-payment of rent that accrues or becomes due during” that period.[58] It now seems clear that the covered period spanned the time from March 7, 2020 to June 25, 2021.[59] So no tenant who suffered a financial hardship during that time period should face the issuance of a warrant of eviction for unpaid rent that accrued during the period.

The TSHA states that financial hardship can be raised “as a defense in a summary proceeding under article 7 of the real property actions and proceedings law.”[60] Further, in determining whether the tenant suffered a financial hardship, the court is required to consider the following, as well as “other relevant factors”: (i) the tenant’s income before the covered period; (ii) the tenant’s income during the covered period; (iii) the tenant’s liquid assets; and (iv) the tenant’s eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, the New York State disability program, the home energy assistance program (HEAP) or unemployment insurance or benefits under state or federal law.[61]

The TSHA specifically provides that the landlord may obtain a money judgment for unpaid rent that accrued during the covered period.[62] However, many nonpayment evictions will be prevented by application of this law. Additionally, it is possible that some holdover evictions[63] should also be stopped by the TSHA. Why? First, some holdover evictions will be clearly motivated by nonpayment of rent during the covered period, even though the landlord does not explicitly state this. In other words, some landlords will attempt to get around the TSHA ban on evictions for covered period nonpayment by bringing holdover evictions. The courts should not permit this. Second, as noted above, the affirmative defense language is very broad. The TSHA financial hardship defense can be raised in “a summary proceeding under article 7 of the real property actions and proceedings law.”[64] By its own terms, this provision is not limited to nonpayment proceedings.[65] Third, courts have already held that the TSHA, as implemented by Executive Order 202.66, applies to holdover proceedings.[66]

The COVID-19 Emergency Rental Assistance Program of 2021

As part of the State Fiscal Year 2021–2022 budget, New York enacted the COVID-19 Emergency Rental Assistance Program (ERAP).[67] ERAP uses federal funding from the American Rescue Plan of 2021 to provide monetary assistance for up to 12 months of rental and utility arrears for eligible tenants, with the money being paid directly to cooperating landlords.[68] Importantly, the legislation implementing ERAP includes a number of protections against eviction. First, neither a nonpayment nor a holdover eviction can be commenced against a tenant who has applied for ERAP, unless and until the tenant is found to be ineligible.[69] Relatedly, if an eviction proceeding has already been commenced, and the tenant applies for ERAP, the case must be stayed pending an eligibility determination.[70]

Tenants are also provided with protection against eviction in the event that the landlord does not cooperate and agree to accept ERAP benefits. The state agency administering the program, the Office of Temporary and Disability Assistance (OTDA), or its designee must make “reasonable efforts” to obtain the landlord’s cooperation.[71] If the landlord will not cooperate, but the tenant is otherwise eligible for ERAP assistance, the money to which the tenant is entitled is to be set aside for 180 days,[72] allowing the landlord time to change course and agree to accept the funds.[73] It appears that the eviction stay continues in effect during this time period, which should persuade the landlord to cooperate. Additionally, the statute gives the tenant “an affirmative defense in any proceeding seeking a monetary judgment or eviction brought by a landlord for the non-payment of rent accrued during the same time period covered by the provisional payment.”[74] This defense should further incentivize landlords to cooperate, especially since it exists for “twelve months from the determination of provisional eligibility.” But, ultimately, “[i]f the landlord has not accepted such provisional payment within twelve months of the determination the landlord shall be deemed to have waived the amount of rent covered by such provisional payment,” and the landlord is precluded from seeking eviction or a money judgment based on “the amount of rent covered by such provisional payment.”[75] The statute is silent regarding whether a landlord can refuse to accept ERAP funds for an eligible tenant and then move forward with a holdover eviction.[76] However, allowing this would obviously run contrary to the purpose of the ERAP program – keeping as many tenants in their homes while making their landlords whole.

Moreover, there are substantial protections in the statute for tenants whose landlords cooperate and receive ERAP benefits. By accepting the funds, the landlord agrees that the arrears covered by the ERAP payment are satisfied “and will not be used as the basis for a non-payment eviction,” and also “to waive any late fees due on any rental arrears paid” by ERAP.[77] Further, the landlord cannot raise the rent for at least “one year after the first rental assistance payment is received.”[78] Neither can the landlord pursue a holdover eviction for one year after the first payment is received, with one small exception.[79] Finally, the landlord must notify the tenant of all these protections.[80]

The Warrant

If the court finds that some amount of rent is owed to the landlord, it is not paid at the time of judgment, and neither the TSHA nor ERAP defenses prevent issuance of a warrant of eviction, then the warrant may issue. Pursuant to the HSTPA, the warrant must be served with 14 days’ notice.[81] Notably, neither issuance of the warrant nor its service terminates the tenancy. The tenant still has the right to pay and stay.[82]

The Extended Right To Pay and Stay

Pursuant to RPAPL § 749(3), if the tenant tenders “the full rent due” to the landlord, or deposits it with the court, “the court shall vacate the warrant of eviction,” unless the petitioner proves “that the tenant withheld the rent due in bad faith,”[83] which will be a rare case. Thus, the tenant has an extended right to pay and stay, even after service of the warrant, “at any time prior to execution” – final lockout by the sheriff or constable.[84]

Of course, this begs the question: What is “the full rent due”?[85] Is it the amount demanded in the petition, the amount due at the time of the hearing, the monetary judgment entered by the court or something else? Does it include any money that comes due after the hearing? This is an especially important question when a new month (or other rental period) begins after the hearing but before the scheduled execution of the warrant. From a practitioner’s perspective, it seems that this issue can be addressed by the court being abundantly clear in its decision or in approving the terms of a settlement that involves the issuance of a warrant. Since a money judgment is not always issued at the same time as the warrant, and may not even be requested by the petitioner, the exact amount due that must be paid to vacate the warrant should ideally be included in the warrant itself.

But consider the scenario where the judge simply rules from the bench that some amount of rent – say $1,000 – is owed and, thus, a warrant issues. Suppose rent is $500/month, the tenancy runs from the first day of the month to the last, the warrant is issued on the 25th of the month, and it does not specify how much rent must be paid, to vacate the warrant. If the tenant wants to pay and stay a week later – a couple days into the new month – what is “the full rent due” that must be paid? Is it $1,000 or $1,500 (including rent for the subsequent month) or some amount in between (perhaps a per diem amount after issuance of the warrant)? There is a strong statutory basis for concluding that the answer is $1,000 and no more. In RPAPL § 749(3), immediately after the provision that allows for paying the full rent due at any time prior to execution of the warrant, the very next sentence indicates that the petitioner is entitled to recover only the sum of money owed for two discrete time periods: money owed “at the time when the special proceeding was commenced” and for the time between commencement and when the warrant is issued.[86] Thus, “the full rent due” should be the amount of rent owed at the time the court issues the warrant. It should not include any amount that accrues after that. Indeed, at least one court has already come to this conclusion.[87]

The Hardship Stay

One procedural protection for tenants that was greatly expanded by the HSTPA is the so-called hardship stay. Under the previous version of RPAPL § 753(1), courts in New York City only could discretionarily stay issuance of the warrant of eviction for up to six months in holdover cases.[88] However, as modified by the HSTPA, this subsection now makes this discretionary stay available in nonpayment cases as well, throughout New York State, and for up to one year.[89] In exercising its discretion to stay an eviction, the court must consider a number of factors, including ill health, exacerbation of an ongoing condition, a child’s enrollment in a local school and any other extenuating circumstance affecting the ability of the applicant or the applicant’s family to relocate and maintain quality of life. In deciding whether to grant the stay or in setting the length or other terms of the stay, the court is also required to consider any “substantial hardship”[90] the stay might impose on the landlord.[91] The stay must be conditioned on payment of the amount due for occupation of the premises during the stay, but the court may permit installment payments.[92] Before the HSTPA, the payment of all unpaid rent was required before a stay could be granted.[93] However, this is no longer mandatory; it is within the court’s discretion.[94]

Conclusion

As applicable moratoria expire, a wave of evictions will begin in New York. Tenants will have to avail themselves of procedural protections in the law, some of which are currently unsettled because they went into effect only a short while before the COVID-19 pandemic hit. Yet this presents an opportunity for these issues to be litigated and the protections to be firmly established. Foremost among these are the rights to a five-day rent grace period, to raise the connected affirmative defense for failure to provide the five-day notice, and to request a jury trial – even after the first appearance. Additionally, many tenants will seek to use the TSHA or ERAP defenses to prevent eviction in nonpayment cases, and these may also provide protection in holdover proceedings. In those cases where a warrant of eviction will issue, it will be critical to confirm the exact amount of rent that must be paid to prevent execution of the warrant, and to ensure that it does not include any post-judgment amounts. Finally, the hardship stay available under RPAPL § 753(1) can be applied as a “safety net” to prevent eviction in many other cases. All these tenant protections, when properly utilized and applied by the courts, will delay and, in many cases, prevent homelessness and the unnecessary displacement of families.

William J. Niebel is adjunct professor of law at Cornell Law School, directing its Tenants Advocacy Practicum. Professor Niebel is also a staff attorney at Legal Services of Central New York, Inc., primarily handling landlord-tenant cases. This article will also appear in a forthcoming issue of the N.Y. Real Property Law Journal (vol. 49, no. 2), a publication of the Real Property Law Section. www.nysba.org/realproperty


[1] Chrysafis v. Marks, 594 U.S. ____ (2021).

[2] The CDC moratorium primarily prevents evictions for nonpayment of rent, where an “Eviction Prevention Declaration” is completed by the tenant, who must be residing in a county with a “substantial” or “high” level of COVID-19 community transmission. CDC COVID-19 Temporary Protection from Eviction, https://www.cdc.gov/coronavirus/2019-ncov/covid-eviction-declaration.html.

[3] See generally Gerald Lebovits et al., New York’s Housing Stability and Tenant Protection Act of 2019: What Lawyers Must Know, 24 J. Affordable Housing & Community Dev. L. 75 (2020).

[4] See L. 2020, ch. 127, eff. June 30, 2020.

[5] That is, before the eviction case is commenced in court.

[6] The warrant of eviction is the court order authorizing a law enforcement officer to actually remove the tenant from his or her home.

[7] N.Y. Real Prop. Act. & Pro. Law § 711.

[8] That is, the landlord evicting the tenant without using the court process, such as by changing the locks.

[9] Enacted by the HSTPA, pt. M, sec. 24. Self-help eviction is also a crime in New York City, under N.Y.C. Admin. Code § 26-521.

[10] N.Y. Real Prop. Act. & Pro. Law § 711(2).

[11] Id.

[12] Section 711(2) previously required that “a demand of the rent ha[d] been made, or at least three days’ notice in writing” had been given, before a summary eviction proceeding could be commenced.

[13] N.Y. Real Prop. Act. & Pro. Law § 711(2).

[14] Enacted by the HSTPA, pt. M, sec. 9.

[15] Subsection (a) specifies the required contents of the receipt and subsections (b) and (c) address particular payment scenarios.

[16] Though the statute refers to a “lease agreement” being in effect, it does not say written lease agreement. Lease agreements can be either oral or written. Andrew Scherer, Residential Landlord-Tenant Law in New York § 2:1 (2020).

[17] The Summary of Provisions on the New York Senate website states that RPL § 235-e(d) “provides more robust record-keeping” than was previously required.

[18] N.Y. Real Prop. Law § 235-e(d).

[19] One city court suggested that the defense can be raised “only where there is a genuine issue of a fact in a non-payment proceeding,” which would “permit the court to preclude the collection of rent as a consequence for non-compliance.” Lawler v. Canfield, 66 Misc. 3d 312 (City Ct., Watertown 2019). However, the statutory language places no such limitation on the defense.

[20] This is misleading, in the sense that the notice does not provide the tenant with five days to do anything. By comparison, a 14-day notice gives the tenant 14 days to pay or vacate. Nevertheless, this article will use the phrase “five-day notice” for readability and because it is familiar to practitioners.

[21] That is, failure to serve this notice does not deprive the court of jurisdiction or authority to entertain the summary eviction proceeding; it must be raised as an affirmative defense.

[22] N.Y. Real Prop. Law § 235-e(d).

[23] Id.

[24] See, e.g., Bolden v. Blum, 418 N.Y.S.2d 229, 230–31 (3d Dep’t 1979) (“The rule is well established that in statutes, words of ordinary import are to be given their usual and commonly understood meaning . . . and every word is to be given effect.”) (citations omitted).

[25] The 14-day notice must be served as prescribed in RPAPL § 735. The § 235-e(d) notice is served by certified mail.

[26] N.Y. Real Prop. Law § 238-a(2) (emphasis added).

[27] Id.

[28] See supra note 16, at § 9:17.

[29] N.Y. Real Prop. Act. & Pro. Law § 731(1).

[30] N.Y. Uniform City Ct. Act § 400(1).

[31] N.Y. Uniform Justice Ct. Act § 400.

[32] NY Real Prop. Act. & Pro. Law § 702.

[33] Id.

[34] 140 N.Y.S.3d 294 (3rd Dep’t 2021).

[35] Id.

[36] Id.

[37] Stating that “[n]o fees, charges or penalties other than rent may be sought in a summary proceeding.”

[38] N.Y. Real Prop. Law § 234.

[39] Id.

[40] Such as where attorneys’ fees are provided for in the lease and not requested upon a default judgment.

[41] Prior to the HSTPA, other fees could be designated as “additional rent” in the lease and sought in a nonpayment eviction.

[42] N.Y. Real Prop. Act. & Pro. Law § 733.

[43] N.Y. Real Prop. Act. & Pro. Law § 743.

[44] Supra note 16, at §§ 13:1-13:2.

[45] N.Y. CPLR Rule 406.

[46] NY Real Pro. Act. & Pro. Law § 745(1).

[47] Courts should advise unrepresented tenants of their rights to an adjournment and to seek counsel.

[48] Id.

[49] In the experience of the author and his colleagues.

[50] N.Y. Real Prop. Act. & Pro. Law § 745(1).

[51] Supra note 16, at § 10:23.

[52] NY Real Prop. Act. & Pro. Law § 745(1).

[53] Supra note 16, at §§ 10:15-10:16 (2020).

[54] N.Y. Real Prop. Act. & Pro. Law § 731(4).

[55] Albany v. White, 261 N.Y.S.2d 361 (Civ. Ct., N.Y. City 1965).

[56] Supra note 16, at §§ 15:1-15:2, 15:28.

[57] See L. 2020, ch. 127, eff. June 30, 2020.

[58] Id.

[59] The COVID-19 covered period is specifically defined as “March 7, 2020 until the date on which none of the provisions that closed or otherwise restricted public or private businesses or places of public accommodation, or required postponement or cancellation of all non-essential gatherings of individuals of any size for any reason in [the relevant Executive Orders] . . . continue to apply in the county of the tenant’s or lawful occupant’s residence.” The applicable Executive Orders were rescinded by the governor, effective June 25, 2021.

[60] See L. 2020, ch. 127.

[61] Id.

[62] Id.

[63] That is, evictions based on a claim that the lease has expired or the tenancy has been terminated, usually without any stated reason. These kinds of evictions do not generally allege nonpayment of rent.

[64] Id.

[65] A holdover eviction proceeding is also a summary proceeding under article 7 of the real property actions and proceedings law.

[66] SRI Eleven 1407 Broadway Operator LLC v. Mega Wear Inc., 71 Misc. 3d 779 (Civ. Ct., N.Y. City 2021); Cabrera v. Humphrey, 192 A.D. 3d 227 (3d Dep’t 2021).

[67] The COVID-19 Emergency Rental Assistance Program of 2021.

[68] Id.

[69] Id. at sec. 8.

[70] Id.

[71] Id. at sec. 9(2)(b). Such outreach efforts can be “considered complete if: (i) a request for participation has been sent in writing, by mail, to the landlord or utility provider and the addressee has not responded to the request within 14 calendar days after mailing; or (ii) at least 3 attempts by phone, text, or e-mail have been made over a 10 calendar day period to request the landlord’s or utility provider’s participation; or (iii) a landlord or utility provider confirms in writing that the landlord or utility provider does not wish to participate. The outreach attempts or notices to the landlord or utility provider shall be documented and shall be made available to the tenant.”

[72] The 180 days can be extended by OTDA or its designee upon a showing of “good cause.” Id.

[73] Id. at sec. 9(2)(c).

[74] Id.

[75] Id.

[76] As noted above, holdover evictions are only explicitly barred or stayed during the application/review period, that is, until an eligibility determination is made.

[77] Id. at 9(2)(d).

[78] Id.

[79] Id. An exception is provided for situations where “the dwelling unit . . . is located in a building that contains 4 or fewer units, in which case the landlord may decline to extend the lease or tenancy if the landlord intends to immediately occupy the unit for the landlord’s personal use as a primary residence or the use of an immediate family member as a primary residence.”

[80] Id.

[81] N.Y. Real Prop. Act. & Pro. Law § 749(2)(a).

[82] RPAPL § 749(3) previously provided that “[t]he issuing of a warrant for the removal of a tenant cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant.” The HSTPA removed this language.

[83] N.Y. Real Prop. Act. & Pro. Law § 749(3).

[84] Id.

[85] Id.

[86] Id.

[87] 636 Apt. Assoc., JV v. Mayo, 69 Misc. 3d 878 (City Ct., New York 2020).

[88] HSTPA, pt. M, sec. 21.

[89] Id.

[90] Not just any hardship.

[91] N.Y. Real Prop. Act. & Pro. Law § 753(1).

[92] N.Y. Real Prop. Act. & Pro. Law § 753(2).

[93] HSTPA, pt. M, sec. 21.

[94] N.Y. Real Prop. Act. & Pro. Law § 753(2); HSTPA, pt. M, sec. 21.

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