Nonpayment Proceedings Under New York Law: Answers to Frequently Asked Questions
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 are only permitted where a tenant continues to be in possession of the premises 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. If a tenant has already vacated, a landlord may not 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. Where a tenant claims that the court lacks jurisdiction because it had already vacated the premises as of the date the proceeding was commenced, the issue of whether and/or when the tenant vacated is a factual issue to be determined by the court. A tenant's relinquishment of possession after a nonpayment proceeding has been commenced does not divest the court of jurisdiction.
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.
What information must be included in a landlord's rent demand?
At a minimum, the rent demand must clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent allegedly due for each such period. (See, Kulok v. Riddim Co., 712 NYS2d 728 (Civ. Crt. NY Cty. 2000).
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.
What information must be included in a landlord's nonpayment petition?
The Petition must state:
- the parties' respective interests in the subject premises;
- if any party is a corporate entity, specify whether it is a domestic or foreign entity;
- an accurate description of the premises from which removal is sought; in a residential case, the description should include the individual apartment unit's designation.
- A clear, definite and unequivocal description of the amount of rent that is due, and the time periods for which such sums are attributable.
- A description of the landlord's rent demand. The demand and corresponding affidavit of service may be annexed, as an exhibit, to the petition.