What Is The 5 And 12 Rule?

The rules of service and return dates in court in Long Island are very simple and it is called the 5 and 12 rule. If I file a Notice of Petition and a Petition and I am able to effectuate service on 1 November, which would be quite difficult, I would not be able to have a return date on the court in less than 5 days from the date of service, so I would not be able to make it any sooner than the 5th or the 6th and I would not be able to put it out longer than 12 days, so there would be a very small window there.

The person would also have to contemplate in the process service variable that if they were not able to effectuate personal service, it would take about 4 to 5 days to effectuate substitute service between the attempts and the nailing and the mailing.

I do all my service using a professional process server. I serve the predicate notice and the petition with the process server, and my process server will generally say that if they are picking up the petitions on the first of the month, they do not want the court date until at least the 13th of the month. In our example, we would be in the court on the first date which in Nassau County’s district court would be the 14th November.

I go to court every day and we usually see the tenant appear without a lawyer on the first court date. The judges in landlord tenant court are very fair. Judges will often ask the tenant if they wanted to be screened for a volunteer lawyer, similar to a public defender. If the tenant wanted to be screened, the court would set an adjourn date. The adjourn date would usually be one to two weeks out but generally not more.

Whether or not the person got screened, the courts in Nassau County would generally push it out for one to two weeks. Assuming we got in at the 13th for the first appearance, then if there was no lawyer we would come back on the 27th of November. On that date if the tenant did not come in with the lawyer, I would ask  the court that the next date be marked final but there would not be much else I could do.

At that point, the judge who sits in district court Nassau would ask if we could reach a settlement, because they always try to push a settlement. It would be great if the tenant had a lawyer, but if they did not have a lawyer and I was not able to reach a settlement, then a trial date would be assigned. Nassau district court is about 4 to 5 weeks behind on trial dates, so if we went back on 27 November, we would be back during late December for the trial date, which would be 4 to 5 weeks later.

A trial would be a summary proceeding and it would usually take about an hour. The landlord and the tenant would both be put up to testify and there would generally not be much defense especially in a holdover. The only defense would be a defect in the predicate notice, the service of it or a defect in the petition or the defect in the service of the petition. Most judges will reserve their decisions, so then the parties would have to wait about 2 or 3 days for the decision.

If the landlord wins, they will have to draw an order for a judgment of possession. If they got a money judgment, they would have to ask for money in that judgment and then they would also have draw a warrant of eviction that would be submitted to the court and then the court would take about a week or two to sign them and send them back. At this point we would be entering the beginning of January whereas we had started on October 23rd.

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