Eviction

What Counts as Retaliation?

It is illegal for a landlord to serve a Notice to Quit (or begin eviction proceedings) in retaliation for any of the following:

• Filing a good faith complaint about:
  • Housing code violations
  • Duty of repair issues
  • Warranty of habitability
  • Any other housing-related legal violation
• Taking legal action against the landlord (e.g. small claims or housing court cases)
• Organizing or joining a tenant association or union

Rebuttable Presumption of Retaliation

If a landlord attempts to evict a tenant or change their lease within one year of the tenant taking one of the protected actions above, it is presumed to be retaliation, unless the landlord can prove otherwise. This is called a “rebuttable presumption.”

⚠️ Important Note: If the tenant owes rent or has violated the lease, a landlord may have valid grounds for eviction. In such cases, retaliation may be harder to prove, and the presumption may not apply.

A 14-day notice is issued by a Sheriff, Marshal, or Constable once the landlord obtains a signed warrant of eviction from a judge. This is the final step in the eviction process before physical removal.

⚠️ Important Note: Evictions can happen without a court process, but tenants have the right to defend themselves. If you never received notice to appear in court, you may be able to challenge the eviction with an Order to Show Cause (OTSC). UTA can help you fill one out.

What Happens When a 14-Day Notice Is Served?

• The 14-day notice must be triggered by a signed warrant of eviction issued by a judge.
• A live warrant allows the landlord to bring the warrant to the Sheriff, who will then serve the 14-day notice via mail, posting, or personal delivery.
• The 14-day period includes weekends and holidays, but the lockout cannot occur on those days.
• Evictions can only happen on business days, during daylight hours.

If You’ve Received a 14-Day Notice

• Start preparing immediately. Pack important documents, medications, and valuables.
• After the 14 days expire, the Sheriff will come to change the locks. At that point, the apartment is no longer legally in your possession.
• If you fully complied with a court agreement but still received the notice, go to court immediately and file an OTSC.

Rights in Nonpayment of Rent Cases

In a nonpayment eviction, the tenant has the right to pay all rent owed up to the time of the eviction to stop the lockout.

• Bring full payment (not partial) to court or directly to the landlord, preferably with proof.
• If you are on a payment stipulation and miss a payment by even a day or a dollar, the landlord may proceed with eviction without going back to court.

After the Lockout

• The landlord is responsible for keeping your belongings safe and dry for a reasonable time (typically 14–30 days).
• This does not mean you get to stay in the unit.
• Landlords cannot hold your items for ransom, but they can charge for storage if they place your items in a unit.

Emergency Shelter After Eviction

New York is a Right to Shelter state. You cannot be left without a place to go.

• Before 4:30 PM (weekdays): Go to the Albany County Department of Social Services, 162 Washington Ave.
• After 4:30 PM or weekends/holidays: Contact Homeless and Travelers Aid Society (HATAS) at 138 Central Ave or call 518-463-2124 for emergency shelter help.

Eviction cases can result in a money judgment for unpaid rent. There are two types:

1. Possessory Judgment

• The tenant must pay the amount owed to remain in the unit.
• Nonpayment results in eviction.
• Often ordered as a lump sum or installments.

2. Non-Possessory Judgment

• The court awards the landlord money owed, but the tenant doesn’t have to move out.
• These usually apply when the lease has already ended or the tenant is no longer in the unit.

Money judgments can have consequences such as:

• Damaged credit
• Frozen bank accounts
• Wage garnishment (typically 10% of gross income)
• Added fees from the Sheriff or Marshal
• Harder to rent future housing
• Cycle of eviction and unsafe housing
• Less access to homeownership
• Long-term financial impact, especially for BIPOC communities
• Judgments accrue 9% interest and remain valid for 20 years
• Rarely covered by Social Services, seen as non-emergency debt

1. If the Tenant Missed a Court Date

If a tenant did not appear at their scheduled court hearing, they may file an OTSC to:

• Explain why they missed court (such as not being properly served court papers)
• Ask for another chance to appear and present their case

Example:
A tenant receives a 14-day eviction notice but never got the court papers beforehand. They had no idea there was a court case and missed the appearance. An OTSC can be filed to reopen the case and explain what happened.

2. If the Tenant Appeared but the Landlord Didn’t Follow the Agreement

Tenants can also file an OTSC after attending court, if:

• They followed the terms of a stipulation (court agreement) but still received a 14-day eviction notice
• The landlord violated the agreement, such as failing to make agreed-upon repairs or refusing a payment that was due under the stipulation

Example:
The tenant paid the rent as agreed in the settlement, but the landlord still sent a notice of eviction. Or, the landlord promised to repair something and did not. An OTSC can help the court review and enforce the original agreement.

What’s in an OTSC Application?

When completing the OTSC, tenants must explain:

• Why they missed court or believe the case should be reviewed
  (e.g. improper service, mistake by the landlord or court)
• What their defense or argument is
  (e.g. they paid rent, landlord broke agreement, case was filed in error)

The court will review whether the tenant has a valid reason for reopening the case and whether they have a potential defense.

Even if a tenant had a good reason for missing court, the judge may deny the OTSC if the tenant has no legal defense or no way to resolve the issue, such as being unable to pay undisputed rent arrears.

What Happens After an OTSC Is Filed?

If the judge signs the OTSC, the following steps usually apply:

1. The tenant must serve:
   • The Sheriff, to stop the 14-day eviction notice
   • The landlord, using a disinterested third party
2. An affidavit of service must be filed with the court to confirm service
3. A new court date will be scheduled
4. Both parties will reappear in court to “show cause” (explain their side)

At that point, the case will proceed like any other housing court case: the tenant and landlord may try to settle or proceed to trial.

(Service, First Appearance, Settlements, Trials)

Once a landlord has served the proper notice (such as a rent demand, notice to cure, or 30/60/90-day termination notice) and the lease or notice period has expired, they can file for eviction in the local court where the apartment is located.

Service of Court Papers

• Court papers must be served 10–17 days before the court date.
  • If papers are served too early or too late, the tenant may be able to have the case dismissed.
• Papers must be served by a disinterested third party, and may be delivered by:
  • Certified mail
  • Regular mail
  • Personal delivery

After Papers Are Served

• The tenant should prepare to attend the court date.
• If the tenant does not appear, the judge may issue a:
  • Default eviction (warrant is issued immediately)
  • Money judgment for unpaid rent

Even after a default judgment, the landlord must still go to the Sheriff’s Office to serve the tenant a 14-day notice to vacate. Except in rare cases, tenants should always receive this notice before being evicted.

Resolving Nonpayment Cases

• If a tenant pays all the rent owed before the court date or eviction, the case should be dismissed. If this is the case, the tenant should call the court to confirm the case has been withdrawn.
• If the landlord refuses payment after the eviction warrant was granted by the court, the tenant can file an Order to Show Cause to prevent the eviction.
• If a tenant misses court for a good reason, they should file an Order to Show Cause immediately.

Court Filing & Attorney Fees

• If the landlord wins the case, they are usually entitled to recover the $45 court filing fee.
• During settlement negotiations, this fee is often used as leverage—it can be waived or split.
• Judges generally do not tie the filing fee to the eviction outcome, but this varies by court.
• Attorney fees should not be tied to an eviction case. The landlord may request this but tenants can refuse.

Nonpayment of Rent

Tenants have a 5-day grace period before a rent payment is considered late.
Once rent is late:

• The landlord must send a 5-day late rent notice to the tenant.
• The landlord must also issue a 14-day rent demand (often delivered by mail), stating the tenant must pay or vacate the unit within 14 days.

⚠️ Important Note: Tenants cannot be evicted for failing to pay late fees—only for unpaid rent.

Staying Past the End of Tenancy

This applies in two scenarios:

1. The tenant had a fixed-term lease (e.g., a 12-month agreement) that has expired.
2. The tenant is month-to-month and has received proper written notice to vacate. (See section: Month-to-Month Lease)

• Lease termination notices do not need to be notarized or formal, but must be in writing.
• If you live outside a locality with Good Cause Eviction, the landlord does not need to give a reason for ending your lease.
• In the City of Albany and other Good Cause municipalities, landlords must provide a valid reason and cannot simply choose not to renew (see Good Cause Eviction section).
• If your landlord claims you’re not protected by Good Cause Eviction, they must provide written documentation stating why.

⚠️ Important Note: Receiving a lease termination does not remove the tenant’s obligation to pay rent up to the last day of the tenancy.

Once proper notice has been served and the tenant remains in the unit:

• The landlord may file a holdover eviction.
• If the tenant pays rent after the termination date and the landlord accepts the payment, the holdover is invalidated and the landlord must start the process over.

Breach of Lease

If a landlord claims a serious violation of the lease, they must:

• Provide a written notice to cure, giving the tenant 3, 5, or 10 days (depending on the lease language) to correct the issue.

If the tenant fixes the problem, the issue is resolved.
If not:

• The case can go to court.
• If the court finds the tenant did violate the lease, the tenant will usually be given 30 days to correct the violation.
• If the tenant still does not comply, eviction is likely.

Squatters

A property owner may begin a squatter eviction if there is no landlord-tenant relationship with the occupant.
This may happen if:

• The owner bought the property in a foreclosure sale.
• The occupant moved in as a guest but never signed a lease.
• The occupant moved in without permission as a squatter.

In these cases, the owner must serve a 10-day Notice to Quit, telling the occupant to vacate or be taken to court.