Ezratty, Ezratty & Levine LLP
New York Notice to Cure Attorneys
When dealing with a holdover tenant who has violated a substantial term of the written lease agreement, landlords are legally obligated to advise the tenant of the specific violation and provide an opportunity for the tenant to cure it. This is accomplished by serving the tenant with a Notice to Cure if the violation at issue is one that can in fact be cured.
What Are the Legal Requirements for a Notice to Cure?
A Notice to Cure must:
· Clearly state the exact nature of the violation
· Inform the tenant of his right to cure the violation within a certain period of time
· Inform the tenant that the lease will be terminated if the violation is not cured within the specified time period
· Be served upon the Respondent in accordance with the New York statutes governing service of process
What Happens After the Notice to Cure Is Served?
(1) The Notice of Cure provides a tenant with ten days—and depending on the circumstances, sometimes more—to cure the lease violation. At the end of ten days, a tenant who has not cured the violation may be served with a Notice of Termination of the lease agreement.
(2) The Notice of Termination informs a tenant of the amount of time he has to vacate the premises. The length of time the tenant has will be determined by the lease. If the tenant does not leave, the landlord may initiate eviction proceedings with the court by filing a Notice of Petition and Petition.
(3) The landlord must have the Respondent served with the Notice of Petition and Petition that advises him, among other things, of the time, date, and location of the hearing before a housing judge.
(4) At the hearing, both parties must appear to plead their cases to the housing judge.
· If either party fails to appear, the other side wins by default, or there will be an inquest to prove the prima facie case.
· The parties will enter a resolution phase in which a judge attempts to help negotiate a settlement of the issues. If this is unsuccessful, the case will go to the trial phase.
· The tenant may present the court with valid defenses that stop the eviction proceedings (for example, improper service of the predicate notices). The judge may also determine that the facts of the case do not support an eviction (for example, if the tenant was out of the country prior to the hearing, but immediately fixed the violation upon returning to New York).
· A tenant may have a right to a jury trial on the issue of eviction. He must make a written demand for jury trial and pay the appropriate court fee. In general, jury trials in housing court are infrequent, because many written lease agreements contain jury waiver clauses.
· Ultimately, a judge will issue a Judgment of Possession to the landlord or find in favor of the tenant. If the landlord is awarded possession, the judgment may have a delayed date of execution to give the tenant one final chance to cure the violation.
· If the tenant does not comply with the terms of a landlord’s Judgment of Possession, the landlord may present the court clerk with a Warrant of Eviction. A marshal or a sheriff may then execute it.
· The landlord then presents the warrant to a marshal, sheriff, or other law enforcement officer authorized to perform evictions. The law enforcement officer will serve the tenant with a 72-hour or six-day Notice of Eviction, depending on the county. If the tenant remains on the leased premises after the time period specified by the notice, the officer may remove him.
How Can a Tenant Stop the Eviction Process?
A tenant has opportunities to stop an eviction.
· A tenant can raise technical defenses (such as insufficient service of the predicate notices, or insufficient time to cure the violation) that will delay the eviction, or stop the process altogether.
· Curing the violation early in the process (for example, immediately after a Petition to Evict is filed) makes it more unlikely that a judge will order the eviction.
· Housing judges may be flexible in allowing tenants extra time to cure the lease violation, depending on the nature of the violation. (For example: A tenant who has a pet on the premises in violation of the lease agreement will need sufficient time to find alternate housing and accommodations for the animal.)
Representing Landlords in the Greater NYC Area
As you can see, the eviction process for lease term violations is complicated. If you are a landlord and believe you may need to initiate the eviction process, do not hesitate to contact the eviction attorneys at Ezratty, Ezratty and Levine. Whether you require a demand letter, a Notice to Cure, renegotiation of the lease term at issue, or representation for an eviction proceeding, let our experienced real estate attorneys guide you. Contact us today by calling (516) 747-5566 or by visiting us online.