How Can A Landlord Prove Holdover Or Non-Payment To Get A Valid Eviction Order?

In order for the actual case to be valid, the landlord would have to follow the strict requirements of the landlord/tenant court.

For example, I was representing the tenant in a case that I just had dismissed. The tenant called me very late in the game and hired me when we just had two days before we had to appear in court. I met the attorney for the landlord and he was a nice gentleman with whom I had had some dealings together in the past regarding real estate. We chatted a little bit and got to know each other. I asked him for his copies of the service of the petition itself and the copies of the predicate notice of the service thereof.

When I examined them, I discovered that the process server had served the notice of petition personally on my client, but he served his wife with substitutive service, also known as Suitable Age and Discretion service. The service would have to be completed for a Suitable Age and Discretion service, meaning that not only would the person of suitable age and discretion be served, but it would also have to be followed up with the filing in the court with the affidavit and a mailing.

The service would have to be filed in the courthouse and it would have to be mailed by regular mail and certified mail before that 5 days was up. They were supposed to observe the 5 and 12 rule, but they did it 3 days before the court date. I brought this up in the conference with the judge. This judge likes settlements and after I pushed the attorney a little bit, the landlord agreed that they would just withdraw it and then re-serve

The landlord’s attorney had to withdraw this case because it was jurisdictionally defective. The end result was he had to start all over again which gave my clients time to find a new place to live. The reality is that this can be such a complicated process for the average layperson that I would really not recommend anyone to try to do this by themselves.

How Important Is The Process Server To The Case?

Generally speaking, most judges on Long Island allow a predicate notice to be served without a process server. I generally do not do it that way because I have experienced challenges from tenants with regards to the validity of service by a landlord’s friend or something like that where I ended up having to put a non-professional process server n the stand and examine them in front of the judge regarding how we effectuate the service.

I advise my landlords to just spend the money because it would be worth it. I advise them to just spend the extra $150 to get a professional to serve the predicate notice, which is how we would generally do it and I would know that the predicate notice was served properly. Thereafter, we would have to draw a notice of petition.

For these petitions, we would have to first of all make sure that if we had a holdover case, we were drawing up a holdover petition and if it was a non-payment issue, then we would have to draw a non-payment petition. This is an affirmative defense by the tenant. If the case was brought is a holdover but we served a non-payment petition, then that would be a defense and it would get the case dismissed. I often see judges dismissing cases because of defects in the petition or defects in the service of the petition or defects of the predicate notice. Tenants do not have to show much to get a petition dismissed.

In one of the courthouses in Suffolk County, the landlord would not really have to take the stand. They would stand next to their attorney and they would be asked a few questions. For example: “Are you Tracy Merda?”, “Yes”, “Do you own the property at 123 main Street?”, “Yes”.  “Did you serve a predicate notice on the tenant telling them they had to vacate in 30 days?”, “Yes.”  Did the tenant vacate in 30 days?”, “No.”  “Do you own the property?”, “Yes.” The landlord would rest and that would be all the judge in that court would require.

It would not be complicated, and it would not be very cerebral. We would not have to prove much, although occasionally, we would have to deal with a savvy tenant who would challenge that, so we would have to be prepared. Occasionally the judge would want to see a copy of the deed or some kind of evidence that the landlord owned the property, and then they would present a copy of the deed, the judge would look at it, and that would usually be enough.

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