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HandBook of Regulations

Effective Date: April 24, 2013

CHAPTER IV - Summary Proceedings: Evictions and Legal Possessions
 

Section 1: BACKGROUND

Section 1-1: Grounds for Removal

Article 7 of the Real Property Actions and Proceedings Law (RPAPL) governs summary proceedings to recover possession of real property.  Grounds for such proceedings are specified in §§ 711, 713, and 715 of the RPAPL.  Generally, § 711 contains grounds for such proceedings where a landlord-tenant relationship exists.  The most common proceedings under § 711 are holdover proceedings,  where the tenant is alleged to have remained in possession of the premises after the expiration of his or her term without the landlord's permission, and non-payment proceedings,  where the tenant is alleged to have defaulted on the payment of rent.

The lease term for the premises must have expired before the landlord starts a holdover proceeding.  The term may expire either at a time fixed in the written lease or, if the written lease so provides, at an earlier time following a specified event.  One such event could be the landlord's giving notice that the lease will expire at a particular time as a result of a breach by the tenant.  The courts refer to such a lease provision as a “conditional limitation” on the term of the lease.

Additional grounds for summary proceedings include, among others, illegal use or occupancy of the premises

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Section 1-2: Parties to be Named

Generally, all persons in possession of real property who derive their right or title to possession through the respondent (tenant) must be named in the papers.  If a sub tenant is in possession, he or she must be joined in the proceedings.  If he or she is not named, such sub-tenant in possession may not be evicted, even though the prime tenant may be evicted.  Generally, the children, spouse, or guests of a tenant need not be named.  Where a landlord does not know the name of the tenant, or subtenants, the landlord may proceed against them by designating such tenant “John or Jane Doe.”

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Section 2: NOTICE OF PETITION AND PETITION

Section 2-1: Generally

The notice of petition and petition are the legal papers whereby a landlord commences removal proceedings against a tenant.  These papers, commonly called dispossess papers, may be prepared only by an attorney or by a landlord personally.  Pursuant to §§ 484 and 492 of the Judiciary Law, a city marshal who prepares these papers commits a misdemeanor.

A marshal may not use any lettering, language, or signs on the windows or doors of his or her office, stationery, or anywhere else which would indicate that the marshal prepares or specializes in “landlord and tenant cases,” “dispossess,” or “summary proceedings.”  This language, furthermore, may not be used in the telephone directory or in the marshal’s online advertising, if any. (See Chapter X, § 1-5)

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Section 2-2: Service

The Real Property Actions and Proceedings Law (RPAPL) requires that service of the notice of petition and petition be made by delivering the papers personally to the tenant or, if that is not possible, that it be made on a person of suitable age and discretion who resides or is employed at the property which is sought to be recovered. If the second method of service is followed, a marshal must, within one day, mail two (2) copies to the tenant, one by certified or registered mail and another by regular first class mail. The marshal must obtain receipts for certified or registered mailings and retain the receipts in his or her office. For the notice sent by regular first class mail marshals are advised to obtain and retain a “certificate of mailing” or other proof of mailing such as a manifest stamped by the post office. It is essential to effect in hand service on the tenant when the petitioner is seeking a money judgment along with removal of the tenant.

Marshals must first attempt the above methods of service.  However, when neither is effective, a marshal may resort to conspicuous service, the so called “nail and mail” method.  This method consists of affixing a copy of the notice of petition and petition to a conspicuous part of the property to be recovered, or under the door thereof, and within one day, mailing to each respondent two (2) more copies, one by certified or registered mail and another by regular first class mail.

When a notice of petition and petition in a holdover or non-payment proceeding are given to a marshal to serve, they may not be held indefinitely.  In holdover proceedings, the papers must be served at least five (5) days, but not more than twelve (12) days, before the date on which the petition is noticed to be heard.   In non payment proceedings, the notice of petition shall be returnable before the clerk within five (5) days after its service.   Furthermore, within three (3) days from the time of service, a marshal must file the notice of petition and petition with an affidavit of service in the Court where the matter is to be heard.   The marshal should be aware that pursuant to RPAPL § 735(2), service is considered complete at the time of personal delivery to the respondent, but in the case of service by any of the other above-described methods, service is complete only when proof of service is filed with the court.  Accordingly, a marshal who serves by any method other than personal delivery must take care to include a return date on the petition that takes into account the date service is complete.

The Corporation Counsel of New York City has rendered an opinion which states that the provisions of § 1603 of the New York City Civil Court Act do not prohibit a marshal from retaining the services of a licensed process server to serve a notice of petition and petition upon a tenant .  However, if the services of a process server are utilized, the marshal still has the responsibility to ensure there was proper service.

Before hiring a process server, the marshal should conduct an initial review of the server’s logbooks and affidavits to determine whether they are in compliance with State and City law, including the requirements of the City Rules governing process servers.   If a marshal uses a process server regularly, he or she should periodically review and compare the server’s logbooks and affidavits of service, checking for accuracy and completeness and ensuring that the server has successfully made personal service and substituted service upon identifiable individuals in a reasonable percentage of the cases. A high proportion of conspicuous-place service should prompt the marshal to inquire further and to assess the process server’s diligence, reliability, and suitability for work with a City marshal.  Marshals are advised to document the dates and results of these reviews.

The marshal must keep accurate records of the name, home and business address of all process servers used. The process server's license number, and the exact time, date, place and method of service of the notice of petition and petition must be adequately set forth in the affidavit of service, which must be executed on the date of service.   In addition, Section 20-410 of the New York City Administrative Code requires all licensed process servers to carry an electronic device that uses a global positioning system or other technology to electronically establish and record the time, date, and location of service, and to maintain this data for seven (7) years.  The marshal should ensure that any process server he or she utilizes is in compliance with this requirement.

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Section 3: MILITARY AFFIDAVITS

At the time the notice of petition and petition is served, a marshal may be required by the landlord or his attorney to prepare an affidavit of non military service or dependency.  This requires an inquiry as to whether the tenant being evicted is in or is dependent upon anyone in the military.  It may be accomplished by talking to a neighbor or a superintendent or anyone else who may have such knowledge.  The affidavit must summarize the findings accurately.

Pursuant to the Servicemembers Civil Relief Act,  and the rules of the New York City Civil Court, a non military affidavit is required for every Landlord and Tenant proceeding affecting residential housing before a default judgment may be issued against a respondent who has failed to answer.  A non-military affidavit may also be required in a case where the respondent has answered and is proceeding pro se, but has failed to appear, and more than thirty (30) days have elapsed since his or her last appearance in court.

If the marshal (or marshal’s process server) prepares the necessary non-military or military affidavit, it must be noted in the marshal’s notice of petition and petition books or docket record, and the marshal must retain a copy in his or her records.

In a 2010 case, the First Department made clear that affidavits based on conclusory statements and hearsay are insufficient. Marshals are advised to become familiar with the court's detailed rules for submitting these affidavits. The non-military affidavit is subject to the marshal's duty to maintain accurate records, as provided by Chapter I, § 1-10 of this Handbook, the marshal’s duty to conduct official business in accordance with law, and his or her responsibility for the ministerial duties performed by the marshal’s office managers and process servers (See Chapter I, § 1-1).  Falsification of such an affidavit is a ground for criminal prosecution under the Penal Law and removal from office.  In addition, under federal law, a person who knowingly makes or uses a false non-military affidavit commits a misdemeanor punishable by a one-year term of imprisonment and a fine of up to $5,000.

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Section 4: WARRANT REQUISITION

After being notified by a landlord that he or she has been awarded a judgment, it is the marshal's responsibility to requisition the warrant of eviction from the court.  Neither attorneys, nor landlords, nor agents of the landlord may requisition warrants; only a city marshal may requisition a warrant.   However, a marshal or any bona fide office employee or agent of a marshal acting under his or her direction and supervision may deliver or mail the requisitions to the court.  The issuance of warrants is a duty of the clerks in the courts and not a favor.  As noted in Chapter I, § 1-6 of this Handbook, a marshal shall not give, offer, or agree to give anything of value or confer any benefit upon a public servant including but not limited to court personnel in connection with the public servant's performance, non-performance or violation of his or her official duties.  Only a marshal or his or her bona fide employee may receive a warrant that has been issued by the court, either by retrieving it from the court in person or receiving it in the mail.

A city marshal shall not pay a landlord, a landlord's attorney, or any other agent or representative of the landlord for preparing any document in connection with the eviction.  If the marshal has not previously assigned a docket number to the case, the marshal must, before requisitioning the warrant from the court, enter all required information on the docket record or page, and note in the appropriate field or in the “remarks” section the date that the marshal received from the landlord or the landlord's representative the request to obtain the warrant.  The marshal must enter the docket number on the warrant requisition form before submitting it to the court.

The fee for requisitioning, receiving, entering a warrant of eviction in the appropriate records or books, and for return of a warrant of eviction shall be charged once for each warrant, without regard to the number of requisitions the marshal submits to the court. The fee may be charged in advance and shall not be waived (See Chapter IX § 2-3).

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Section 5: NOTICE OF EVICTION

Section 5-1: Form and Content of the Notice

Real Property Actions and Proceedings Law (RPAPL) § 749(2) provides that the enforcement officer to whom the warrant of eviction is issued shall give at least seventy-two hours notice, excluding any period which occurs on a Saturday, Sunday or a public holiday, in writing, to the person or persons to be evicted.  See § 5-2 for how the notice must be given.  The written notice advises the tenant that if he or she has not vacated the premises, he or she will be evicted by a marshal on any business day after the notice period.

Two approved forms for the notice of eviction are attached as appendices to this Handbook.  Marshals shall use these forms unless they obtain prior approval from the Department of Investigation to use others that contain all the required information.  One form (“72-Hour Notice of Eviction--Personal Service”) advises the respondent that he or she may be evicted on the fourth business day after the date of the notice or on any business day thereafter.  This form may be used only when the notice is served personally upon the respondent.  The other form (“Notice of Eviction--Alternative Service/Mailing”) advises the respondent that he or she may be evicted on the sixth business day after the date of the notice or on any business day thereafter. This form may be used when the notice is delivered personally to the respondent, and must be used when served or given by any method that requires a mailing.

The following information must be included on all notices of eviction:

  1. the marshal's name, address, telephone number, and badge number;
  2. the name and county of the court;
  3. the title of the action, including the index number;
  4. the address of the premises, including a designation or description of the rooms or apartments concerned;
  5. a statement in bold type designating the notice as a notice of eviction;
  6. the date of the notice, which must be on or after the date the notice is delivered personally to the respondent, or if served or given by any method that requires a mailing, the date on which it is mailed (See §§ 5-2 and 5-3 for instructions concerning service and the date of the notice); and
  7. the following statements:
    • [Only for 72-Hour Notice served by personal delivery to the respondent]: Please take notice that the Court has issued a warrant for your eviction. If you fail to vacate the described premises, YOU MAY BE EVICTED, WITHOUT FURTHER NOTICE, ON THE FOURTH BUSINESS DAY AFTER THE DATE OF THIS NOTICE or on any business day thereafter. "Business days" are Monday through Friday except legal holidays.
    • [For Notice of Eviction served or given by any method that requires a mailing]: Please take notice that the Court has issued a warrant for your eviction. If you fail to vacate the described premises, YOU MAY BE EVICTED, WITHOUT FURTHER NOTICE, ON THE SIXTH BUSINESS DAY AFTER THE DATE OF THIS NOTICE or on any business day thereafter. "Business days" are Monday through Friday except legal holidays.
    • The ONLY way you can stop this eviction is if a Court issues an order to show cause that stays your eviction. You may apply for such an order at the Civil Court, Landlord-Tenant part, in your borough. 
    • If the Court has stayed your eviction and the stay is now in effect, you will be evicted only if the stay ends or is vacated by the Court.  If the Court has already ordered that you may be evicted if you fail to make a payment or comply with the Court's order by a certain date, your failure to pay or comply with the Court's order by that date may result in your eviction without further notice.
    • If you are dependent upon a person in the military service of the United States, advise the clerk of the court immediately in order to protect your rights.
    • If you need legal assistance, the Legal Aid Society may be able to assist you (check telephone listing in your borough).  If you are a senior citizen, you may seek assistance by dialing 311.
    • If you receive public assistance, notify your caseworker immediately.The Human Resources Administration may be able to help you with back payments whether or not you receive public assistance.  Call (718) 557-1399 for information.

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Section 5-2: Service

Personal Delivery to Respondent

The law provides that a notice of eviction must be served in the same manner as a notice of petition, as previously described. See §2-2. If the 72-hour notice is delivered personally to the respondent, the 72-hour notice period shall begin the next day and shall run for three days. Pursuant to Department of Investigation Directive Q-17 (March 23, 1971), the three day period excludes Saturdays, Sundays, or holidays. Thus, if personal service upon the respondent is made on a Wednesday, the 72-hour period will begin Thursday and end Monday, and the earliest the eviction can occur is Tuesday. The table below specifies the minimum time periods between the date of personal service and the earliest eviction date. In each case, the earliest eviction date is the fourth business day after the date of service.

Day Personally Served

72-Hour Notice Period Begins

Earliest Eviction Day 

Monday

Tuesday

Friday

Tuesday

Wednesday

Monday

Wednesday

Thursday

Tuesday

Thursday

Friday

Wednesday

Friday

Monday

Thursday

Saturday

Monday

Thursday

Exception (Holiday): When there is a holiday on any weekday (Monday through Friday) after the notice is personally served and on or before the day shown in this column, the earliest eviction day becomes the business day after the day shown in this column.

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Other Methods of Service

Where any method of service other than personal delivery to the respondent is used, RPAPL § 749(2) requires that copies of the notice of eviction be mailed to the respondent by registered or certified mail and by regular first class mail.   The marshal must obtain receipts for certified or registered mailings and retain the receipts in his or her office.  For the notice sent by regular first class mail marshals are advised to obtain and retain a “certificate of mailing” or other proof of mailing such as a manifest stamped by the post office.In the City of New York, seventy-two hours is not sufficient time to allow for delivery of the mailed notices.

Therefore, to give the occupant of the premises adequate notice of his or her impending eviction, city marshals shall add two business days to the 72-hour notice period when the notice is given by any method requiring a mailing.

Copies of the notice of eviction must be mailed within one day of whichever of the following methods of delivery to the premises is used:

  • delivery to a person of suitable age and discretion who resides or is employed at the premises; or
  • affixing a copy of the notice upon a conspicuous part of the premises to be recovered; or
  • placing a copy of such notice under the entrance door of such premises.

The notice period begins the day after the date of mailing and shall run for five days, excluding Saturdays, Sundays, and holidays. The table below specifies the minimum time periods between the date of mailing and the earliest eviction date. In each case the earliest eviction date is the sixth business day after the mailing date.

Day Mailed

Earliest Eviction Day  (6th Business Day)

Monday

Second Tuesday

Tuesday

Second Wednesday

Wednesday

Second Thursday

Thursday

Second Friday

Friday

Second Monday

Saturday

Second Monday

 Exception (Holiday): When there is a holiday on any weekday (Monday through Friday) on or between the day mailed and the day shown in this column, the earliest eviction day is the business day after the day shown in this column.

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Marshal Responsible for Service

The marshal must retain the affidavit of service for the notice of eviction in his or her office and provide a photocopy to the tenant and/or the tenant's attorney upon request.

The Corporation Counsel has advised this Department that marshals may retain the services of a licensed process server to serve the notices of eviction as required by the RPAPL. However, responsibility for the actions of the process server rests with the marshal.  See § 2-2 above for details on the marshal’s responsibilities with respect to the use of a process server.

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Section 5-3: Date of the Notice

The written notice of eviction must be dated.  By referring to the date and the applicable statement on the notice, the occupant of the premises will be able to ascertain the earliest date on which he or she may be evicted.

The marshal shall date the written notice of eviction by printing legibly in the space captioned “Date of Notice” either the date the notice is personally delivered to the respondent, or for a notice served by one of the alternative methods authorized by RPAPL § 735(1), the date copies are mailed.  When notice by mail only is authorized by § 5-4, below, the date of the notice shall be the date it is mailed.  

As noted in § 5-1, the marshal must use the appropriate notice of eviction form when the notice is served or given by any method that requires a mailing (“Notice of Eviction--Alternative Service/Mailing”).  If the marshal elects to use the notice form for alternative service and mailing, but serves it personally upon the respondent, the marshal shall also mail a copy of the notice to the respondent and enter the date of mailing on all copies of the notice in the space captioned “Date of Notice.”  The respondent shall not be evicted before the sixth business day after the “Date of Notice,” in accordance with the statement on the notice.

The marshal may enter a “Date of Notice” that is later than the date the notice is served or mailed, provided that the earliest eviction date is determined as if the notice was served or mailed on the “Date of Notice.”  The “Date of Notice” shall not be earlier than the date the notice is delivered personally or mailed to the respondent. 

The marshal may conduct the eviction on the earliest eviction date, or any business day thereafter, subject to the thirty day limit described in § 5-4, below.

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Section 5-4: Additional Notice of Eviction After Thirty Days or Stay of Eviction

The public policy underlying the requirement of the 72-hour notice is to ensure that a tenant will have adequate notice of his or her impending eviction. Where, after delivery, the notice becomes stale, it no longer fulfills its purpose.  Consequently, the Department of Investigation requires city marshals to give tenants additional notices of eviction in two situations: 
 

  • The marshal must give the respondent an additional notice of eviction where thirty days have elapsed since the earliest eviction date specified by the previous notice of eviction and the warrant has not yet been executed.

  • The marshal must give the respondent an additional notice of eviction where a Court order stays the eviction after service of a notice of eviction and the stay later expires or is vacated, unless the Court specifically waives the requirement of an additional notice of eviction and the warrant of eviction is then executed forthwith. 

This Department has interpreted “forthwith” to mean within five business days of the earliest date of eviction authorized by the Court's order.  If the Court authorizes the eviction without an additional notice of eviction, but the marshal does not execute the warrant of eviction within five business days of the earliest date of eviction authorized by the Court's order, another notice must be given. 

Furthermore, even if the Court's order waives the additional notice of eviction, if thirty days have elapsed since the earliest eviction date specified by the previous notice, an additional notice must be given, unless the Court's order also authorizes execution of the warrant of eviction within five business days of the date on which the Court issues its order and the warrant of eviction is then executed within five business days of that date. 

Unless the Court orders otherwise, the additional notice of eviction required by this section may be given by regular mail, provided that the appropriate notice form is used and that a certificate of mailing is retained for the marshal's records.If the additional notice of eviction is mailed, the notice form for alternative service and mailing must be used and two business days must be added to the 72-hour notice period.  The notice period begins the day following the date of mailing and runs for five business days.  The table in § 5-2 specifies the minimum time periods between the date of mailing and the earliest eviction date.

 If the additional notice of eviction required by this section is given by regular mail, the fee provided for by CPLR § 8011(f)(2)(ii) for “service of a notice of eviction on a person or persons to be served,” at the amount specified in that section “for each person to be served,” shall apply, and no mileage fee shall be charged.  The fees that may be charged for mailing “additional notices of eviction” will be capped in any individual docket case as follows:

  1. The per-person fee will be limited to two persons.  The fee for mailing the additional notice of eviction to a second person will be charged only if (a) that person is individually named in the warrant and (b) the notice is mailed in a separate envelope to that person.  The fee may not be charged for mailing the notice to a third or any additional person named in the warrant.
  2. The fee will be limited to two instances in which an additional notice of eviction is mailed to one or more respondents.  The fee may not be charged for the third or any subsequent instance of mailing such notice of eviction to one or more persons in connection with a single warrant of eviction.
  3. Postage costs, as reimbursable expenses, are not subject to the aforementioned caps

In the alternative to mailing, the additional notice of eviction may be served by delivering it personally to the respondent, provided that an affidavit of service is completed and retained in the marshal's records.  If the 72-hour notice form for personal service is delivered personally to the respondent on or before the date printed in the “Date of Notice” space, the eviction may be conducted on the fourth business day after the “Date of Notice.”

 A marshal shall comply with the Court's order insofar as the Court specifies how the additional notice of eviction must be given.  Where the Court, either by citing the statute or by using any form of the verb “serve,” orders that the notice must be served in the manner prescribed in RPAPL § 735,  the marshal shall serve the notice in accordance with § 5-2 of this Chapter.  Where the Court either does not specify how the additional notice of eviction must be given or uses any form of the verb “mail,” the marshal’s mailing of the notice is sufficient for the purposes of this section.

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Section 5-5: Service of Notice of Eviction During Stay of Proceedings

The following rules shall apply to service of notices of eviction while Court-ordered stays are in effect:

  • If the Court's order stays all proceedings until a future date, a marshal shall not serve a notice of eviction until after that date.
  • If the Court's order stays only the execution of the warrant until a specified future date, the notice of eviction may be served before that date.

Section 5-6: Reimbursement of Mailing Expenses

Any postage fees incurred in the mailing of notices of eviction are reimbursable expenses.  As such, every marshal is required to ask for and receive such expenses. (See Chapter IX, § 3, “Reimbursable Expenses.”)

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Section 6: EVICTION AND LEGAL POSSESSION PROCEDURES

Section 6-1: Notifications

After the 72 hour notice of eviction has been served upon the tenant, the landlord or his attorney must be advised that the eviction may take place at any time after the 72 hours, between 8:00 a.m. and 5:00 p.m., Monday through Friday.  Marshals may not execute warrants of eviction on those public holidays set forth in Section 24 of the General Construction Law.  With respect to a marshal's religious beliefs, or those of the tenant, discretion is advised in acting upon any warrant of eviction.   It should be noted that no warrant of eviction may be executed unless the landlord or his or her representative is in attendance throughout the entire eviction procedure.

When a marshal closes his or her office to the public before 5:00 p.m. on any day, Monday through Friday, which day is not a legal public holiday as defined by the General Construction Law, the marshal shall not enforce any warrants of eviction on the next succeeding business day,  and shall not arrange for another marshal to execute any warrants of eviction issued to him or her on the next succeeding business day.

The Department of Investigation, Bureau of City Marshals must be notified by facsimile transmission or other means approved by the Department of Investigation received by 4:00 p.m. of all evictions scheduled for the next business day.  The following information must be provided to the Department of Investigation as part of the notification of the evictions scheduled for the next day:

  1. name and address of each tenant;
  2. whether each matter is schedule as an eviction or a legal possession;
  3. name of the moving company, if any, to be used in each matter;
  4. the name and business address of the landlord;
  5. Adult Protective Services (APS) control number, if applicable.

In transmitting the next day's evictions and legal possessions, each marshal must inform the Department of Investigation of the order in which the evictions and legal possession are scheduled to take place.

If after the marshal has transmitted the schedule of evictions it becomes necessary to change the order in which they are conducted because of circumstances beyond the marshal's control, the marshal shall notify the Department of Investigation of the change before conducting an eviction out of order.  The notification of change shall be made by facsimile transmission or other means approved by the Department of Investigation.  This procedure does not apply to scheduled evictions that are cancelled and rescheduled for a later date. 

The rule is that, absent exceptional circumstances, the marshal must inform the Department one day in advance of all evictions and the order in which they will occur.  Accordingly, changes in the order of evictions to be performed on a particular date should be made rarely and only in exceptional circumstances (e.g. moving truck or locksmith delayed). Changes in the order of evictions shall not be made merely for the convenience of any person, nor shall the order of evictions be changed for the purpose of affecting a person's opportunity to obtain or comply with a court order or stipulation pertaining to the execution of the warrant of eviction.  The Department of Investigation may direct a marshal, either in advance or in response to a specific notification, not to change the order of any eviction or evictions if in the judgment of the Department such direction is necessary either to enforce the policy requiring one day's notice or to carry out the Department's supervisory responsibility with respect to the official activities of city marshals.

If an eviction will be conducted by a marshal other than the marshal to whom the warrant of eviction was issued, the marshal to whom the warrant of eviction was issued shall so notify the Department of Investigation the day prior to the eviction, noting clearly on the prescribed form the full name of the city marshal who is executing the warrant of eviction.  The appropriate form may be obtained from the Bureau of City Marshals.

If the marshal receives a request from the landlord, after notification has been made to the Department of Investigation pursuant to this section, to conduct a legal possession instead of an eviction, or if the landlord requests an eviction after the marshal has notified the Department of Investigation that the marshal will conduct a legal possession, the marshal must notify the Director of the Bureau of City Marshals or his or her designee of the change before the close of business the following day.  The notification of the change shall be made by facsimile transmission or other means approved by the Department of Investigation.

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Section 6-2: Preliminaries

Before executing a warrant, a marshal must determine whether an order to show cause has been served upon his or her office, or a Court Attorney to the NYC Civil or Housing Court Judge or other authorized employee of the New York State Court System has notified the marshal's office, by telephone or facsimile transmission, of a stay ordered by the court. When the term “service” or “served with” is used in this section it includes such notification by a Court Attorney or authorized court employee. If the eviction has been stayed by court order, the marshal may not proceed any further, but must await further direction by the court. Marshals are advised to implement procedures in their offices to ensure that the marshal receives and complies with orders served under this section.

The marshal who has received the warrant of eviction from the court (receiving marshal) shall be responsible to accept service of any court order staying or otherwise affecting the warrant. Where the receiving marshal arranges for another marshal to execute the warrant (executing marshal), the receiving marshal shall be responsible to notify the executing marshal of any court order affecting execution of the warrant. This responsibility cannot be delegated. Should a person be wrongfully evicted after the receiving marshal has been served with a court order staying the eviction, or after an attempt to serve the receiving marshal during business hours has failed because of the unavailability or other fault or neglect of the receiving marshal, the receiving marshal shall be subject to disciplinary action unless the receiving marshal actually and personally notified the executing marshal in time to have prevented or halted the eviction.

Furthermore, the marshal may only proceed if the marshal has in his or her possession at the eviction site, the warrant of eviction, and a photocopy of the warrant to provide to the tenant upon request, as well as proof of service of the notice of eviction (including the affidavit of service and if applicable, certificates of mailing and mailing receipts).

In executing a warrant, a marshal must first knock on the tenant's door, identify himself or herself as a city marshal, and state his or her purpose.  For a marshal's own safety and that of the public, the marshal must conspicuously wear his or her official badge while executing a warrant or performing any other official function as required by § 1602 of the New York City Civil Court Act.

The marshal must ensure before conducting an eviction or legal possession that the marshal is at the premises specified in the warrant of eviction.

If the tenant is not home or will not admit the marshal, the marshal has the authority to break into the apartment to execute the warrant.  However, this must be done in the least disruptive way, e.g., using the landlord's key.  This breaking and entering must be done either by the marshal or in the marshal’s presence and under his or her supervision.

If a marshal is aware of facts and circumstances from which he or she should reasonably foresee that a disturbance at the premises is likely to occur the marshal should contact the local precinct and await the arrival of the police before proceeding.acts and circumstances that should result in the marshal's contacting the police before proceeding include, but are not limited to, an occupant's physical resistance to the marshal's entry, a person's use or threatened use of a weapon or physical force to impede the eviction, and any other conduct by the occupant, or other facts of which the marshal is aware, indicating that the occupant will not leave the premises voluntarily in response to the marshal's direction. 

 

Section 6‑3: Effect of Bankruptcy Proceedings

This section is to alert City marshals to issues that may arise from time to time by virtue of a bankruptcy filing by a tenant during an eviction proceeding. It is not intended as legal advice or as an authoritative statement of law and cannot be cited or relied upon as such by a marshal or any other person.  If a marshal encounters a tenant who claims that he or she is entitled to a stay of eviction by virtue of the automatic stay provision of the federal bankruptcy code, the marshal is advised to ascertain the pertinent facts by reviewing any bankruptcy court papers presented by the tenant or served upon the landlord and contacting the bankruptcy court if necessary, and to review the applicable law and if necessary seek independent legal counsel from an attorney regarding the effect of the pending bankruptcy proceeding and the automatic stay, if any, upon the warrant of eviction in the particular case.  Marshals are advised that bankruptcy is a complex body of law, which may change after the effective date of this Handbook, and to exercise caution.

Marshals should be aware that as of 2005 there have been some changes to the bankruptcy code that affect residential evictions.  The Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) of 2005 created an express statutory exception to the automatic stay of eviction proceedings that might otherwise be available to or claimed by some residential tenants who file for bankruptcy.   Pursuant to BAPCPA, a residential tenant who files for bankruptcy after a judgment of possession has been entered against him or her will not have the benefit of the automatic stay.   However, such a residential tenant is entitled to a temporary, 30-day automatic stay of eviction if the tenant includes in his or her bankruptcy filing and serves on the landlord a certification under penalty of perjury that (1) under New York law, the tenant is entitled to cure his or her entire monetary default  even after a judgment has been rendered; and (2) a deposit of the rent that would come due during  the 30-day stay has been deposited with the court clerk. A landlord is entitled to file an objection to this certification and have a hearing in front of a federal bankruptcy judge to seek an exception from the 30-day automatic stay; similarly, the tenant may also file objections to any certifications made by the landlord.  After such a hearing, the court will issue an order indicating whether the 30-day stay will remain in effect. 

Section 6-4:Removal of Tenant's Property

The distinction between an eviction and a legal possession is that in an eviction both the tenant and his or her personal property are removed from the premises, whereas in a legal possession the tenant is removed from the premises and his or her property remains under the care and control of the landlord as bailee for the tenant.  Marshals are required to perform whichever service is desired by the landlord and may not restrict themselves to legal possessions.

If the landlord indicates that he or she desires mere possession of the property rather than having the premises delivered to him or her in “broom clean” condition, upon giving possession of the tenant's premises to the landlord, the landlord or landlord’s representative must endorse the back of the warrant as follows:

"Possession of the tenant's premises with the contents intact is hereby acknowledged. The landlord accepts responsibility for all the property on the premises, releases the marshal from any liability, and agrees to save the marshal harmless from any action resulting from the enforcement of this warrant."

Signature of landlord, his attorney or agent

This “hold harmless” clause may not be used during an eviction; it is reserved solely for legal possession.

In the event the landlord demands that the premises be turned over in “broom clean” condition, the marshal must conduct an eviction.  The marshal must hire a bonded moving company which is licensed by the New York State Department of Transportation.  The marshal must also direct the moving company to deliver the items removed from the premises to a warehouse licensed by the Department of Consumer Affairs pursuant to Title 20, Chapter 2, subchapter 28 of the New York City Administrative Code.

The Department of Investigation can restrict marshals from using certain movers or storage companies due to improper acts and past criminal behavior on the part of the movers or storage companies.  Further clarification of this power is elaborated upon in Appendix K, Joint Administrative Order 514.With respect to legal possessions, marshals are prohibited from making any arrangements with a moving company on behalf of the landlord.

The New York City Administrative Code § 20-482 provides that: “No representative of the city, including but not limited to sheriffs and marshals, shall deposit any household goods in a warehouse that is not licensed pursuant to this subchapter.”

It is the responsibility of the marshal to check periodically with the Department of Consumer Affairs to ensure that the warehouse(s) used is (are) continually licensed.

In all situations where the marshal and mover have access to the tenant's premises at the same time, and a tenant's property is to be removed, a marshal must remain on the premises until all property has been removed and placed on and secured in the moving van.   This rule applies whether the marshal performs an eviction or legal possession.  Under no circumstances shall the tenant's property ever be permitted to remain on the sidewalk.

If the landlord has requested a legal possession and no property is being removed, a marshal must remain until the landlord has possession of the premises and the premises are secured in accordance with Section 6-15 of this chapter.  A landlord has possession of the premises when the marshal has secured the premises by changing the locks, or having them changed under the marshal’s direction and in his or her presence.

Where a landlord has requested a full eviction (e.g. possession of premises in broom-clean condition) the cost of removal of the tenant's property and its delivery to a bonded warehouse must be borne by the landlord.

In every instance in which the moving bill is paid by a marshal, a copy of such bill must be retained on file for a period of three years.

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Section 6-5: Inventory of Property

All marshals are required to prepare a written inventory of all items contained in the premises of any tenant to be evicted.The inventory shall be prepared regardless of whether the marshal does an eviction or a legal possession. The inventory must be complete and accurate, giving a description of all appliances, household furniture, goods, and properties present. Both the quantity and condition of the property must be noted.  Numbers are to be used rather than “hash marks.”

The full name of the tenant must be present on all inventories.The inventory form must be dated, and signed by the marshal, landlord (or landlord’s representative), and, whenever feasible, the tenant.  The inventory form used should have a specially designated place for each of the above mentioned signatures. A copy of this inventory must be provided to the tenant at the time of the eviction whether or not it is specifically requested.  If the tenant is not present, the marshal must make a copy of the inventory available to the tenant upon request. An inventory must be prepared whether the marshal performs an eviction or a legal possession.

Whenever electronic equipment such as stereos, televisions, appliances, etc., is inventoried, the make, model, and where possible, the serial number must be recorded on the inventory.

The marshal should take extra care to ensure that the carton count is correct and legible. Numbers rather than “hash marks” are to be used in reflecting the number of cartons inventoried.  If no cartons are prepared, indicate in the quantity column, the number zero, “0.”

All valuables, e.g., money, jewelry, negotiable instruments, etc., should be inventoried even when the items are small enough to fit into a carton.  Any valuables which, in the marshal's opinion, need to be safeguarded should also be inventoried.  The inventory should reflect that the valuables are being safeguarded.  To safeguard these items, the marshal should deposit them in a safe place in his or her office.  The items should be properly tagged for identification, and the tenant should be notified as to the valuables' location it is recommended that the marshal keep an accurate record of the marshal’s attempts to notify the tenant.

Inventoried items which are carried away by a tenant or his or her representative should also be noted on the inventory form.  A tenant's signature should be present on the inventory as a release authorization.  Any property which is inventoried but not removed (e.g., washing machine, etc.) should be noted as such on the inventory. (See also Chapter IV, § 6‑10.)

If a marshal finds money, he or she must leave it in the custody of the local police precinct.  If this is not possible, the marshal should keep the money in a safe place in his or her office.  If any contraband such as drugs or guns is found, the local precinct must be contacted.

If the apartment is completely vacant, a marshal must still prepare an inventory form indicating that the apartment inventoried contained no property.

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Section 6-6: Items Not to be Removed

The following articles are not to be removed from the premises of a tenant:

  1. food;
  2. groceries, including canned goods and packaged food;
  3. dishes encrusted with food particles;
  4. any fixture so attached to the realty that its removal will cause damage to the realty;
  5. rugs and wall-to-wall carpets which are firmly affixed to the floor;
  6. linoleum or tiles.

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Section 6-7: Social Service Call-Ins

Periodically, a marshal may discover, when carrying out an eviction, an unattended child or a person unable to fend for himself located at the premises on which the marshal is executing the warrant.  While it is the marshal's duty to carry out the terms of a warrant of eviction, certain procedures must be carried out by the marshal to protect the rights, health, and safety of children, mentally ill, handicapped, elderly, or other persons not able to take care of themselves.  Therefore, marshals are now required, when an eviction   is referred to them by a landlord or his attorney, to find out in advance (prior to service of the notice of eviction), if the premises are occupied by any individuals unable to fend for themselves.  A marshal must make a reasonable effort to obtain this information by contacting a person who is familiar with the occupants of the apartment, for example, the landlord, the landlord's attorney, employee, or agent, or the tenant's attorney, or the occupant's immediate family or neighbors.  The marshal must then make a notation in the “remarks” section of his docket book of such inquiry, specifying the name of the person contacted, date contacted, and the results of the inquiry.  If the marshal is informed that there are no such individuals living at the premises in question, this finding must also be clearly noted.

 However, when the marshal is apprised that such an individual resides at the premises at which the eviction is to take place, the marshal must notify the Department of Investigation, before scheduling the eviction.  If the marshal is informed only that the individual is elderly, the marshal must make a further inquiry to attempt to ascertain the elderly person’s approximate age and whether the elderly person is believed to have any mental or physical impairment.  The marshal must include the results of this further inquiry, including any information provided to the marshal regarding the individual’s possible impairment, when notifying the Department of Investigation. 

 In all instances, except when a child is unattended, this Department will immediately notify the appropriate social welfare agency, usually Adult Protective Services (APS), a division of the Human Resources Administration.  In order to give the appropriate social welfare agency the opportunity to assist the occupant who appears to be unable to fend for himself, the Department of Investigation will advise the marshal to schedule the eviction approximately two weeks after his notification to this Department.

 In all instances where the marshal finds unattended children at an eviction site, the local police precinct must be notified immediately.  The marshal must remain at the premises with the children until the police arrive.  Performance of this service is not intended to expedite an eviction.  The purpose of calling the police when an unattended child is found at the eviction site is to provide a service to an individual not capable of fending for himself.   The police should not be called for the purpose of expediting an eviction.  Marshals must make certain that neither they nor the landlord for whom they are acting abuse this service.

 At times, a marshal may be incorrectly advised that the occupants of the premises do not include any individuals who are unable to fend for themselves.  If a marshal appears at the eviction site and discovers mentally ill, handicapped, elderly, or other persons unable to take care of themselves, who have not been brought to the attention of the Department of Investigation and the appropriate social welfare agency, he must immediately notify the Department of Investigation and postpone the eviction.  As described above, the Department of Investigation will notify the appropriate social welfare agency and advise the marshal to reschedule the eviction for approximately two weeks later in order to give the appropriate social welfare agency an opportunity to provide assistance to the occupant who appears to be unable to fend for himself.

 Once a notification has been made, the city marshal must inform APS, or other appropriate social welfare agency providing assistance to the occupants, at least 24 hours in advance of the new eviction date so that the social welfare agency may send a representative to meet the marshal at the eviction site to provide assistance to the occupants. 

 The Department of Investigation may advise the marshal to reschedule the eviction, if necessary, to give the appropriate social welfare agency additional time to provide assistance to occupants of a premise subject to a warrant of eviction.

 If at any time the social welfare agency notifies the marshal that the occupant is ineligible for its services, or that the agency will not provide additional services to the occupant, the marshal shall note the date of the notification and the name of the person providing it in the “remarks” section of his docket records, and may proceed with the eviction on the next available date. 

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Section 6-8: Sick and Disabled Children

Periodically, a marshal may discover, when carrying out an eviction, that a sick or disabled child or a new-born infant resides at the premises where the marshal is executing the warrant.  While it is the marshal's duty to carry out the terms of a warrant of eviction, the marshal must take precautions to protect the rights, health, and safety of sick, disabled, and new-born children.  This section requires the marshal to exercise good judgment and discretion in carrying out his or her responsibilities.

If a marshal learns that a child, under age 18, suffering from an illness or disability or a new-born infant, age two months or less, resides on the premises, and the marshal has reason to believe that evicting that child will place the life, health, or safety of the child at risk, the marshal must delay the eviction for a brief period of time, such as two calendar days, to give the parent or other adult responsible for the child's care an opportunity to arrange for the child's safe movement to another residence or to a medical facility, or to apply for a court order staying the eviction, or to determine that the child may be safely moved after such brief delay.  Factors that the marshal should consider in determining whether evicting a child will place the child’s life, health or safety at risk include but are not limited to a statement to such effect by a physician who has examined the child, a fever, or severe weather, such as freezing temperatures or heavy precipitation, when the child is a new-born infant or very young child, or where the child has an illness or condition that is likely to be aggravated by exposure to such conditions.  If the marshal delays the eviction pursuant to this section, he or she should tell the parent or other adult responsible for the child's care that the marshal is briefly delaying the eviction to give such parent or adult an opportunity to take steps to protect the child's health and safety and that after such brief delay the marshal will return to execute the warrant of eviction unless otherwise directed by the court.

If after delaying an eviction the marshal learns that a parent or other adult responsible for a sick, disabled, or new-born child's care has failed to take any action to protect the child's health and safety and the child remains at risk when the marshal returns to the premises to conduct the eviction the marshal must exercise his or her own judgment to determine whether the eviction should be further delayed or other steps taken to avoid endangering the health and welfare of the child or new-born infant.

If a marshal has reasonable cause to suspect that a child is an abused or maltreated child the marshal is urged to report the pertinent information immediately to the statewide central register (SCR) by calling 1-800-342-3720.  When calling the SCR the marshal should obtain an SCR number and if he or she does so, must record it on the marshal’s docket page or record.  If the marshal believes that the child is in imminent danger the marshal should contact the police immediately.

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Section 6-9: Evictions of Schools, Day Care Centers, Senior Facilities, and Similar Institutions Serving Children and the Elderly

From time to time, City marshals are called upon to execute warrants of eviction or ejectment for the removal of institutional tenants, such as schools, day care centers, and senior centers that, during the business day, provide on-site services for children or the elderly.  “Eviction” herein includes “legal possession” or “ejectment.”  While it is the marshal’s duty to carry out the terms of the Court’s order or warrant of eviction, the marshal’s official action should be performed, and scheduled, in a manner that avoids exposing the affected children or senior citizens to any unnecessary risks and disruptions, including those posed by their unplanned removal, relocation, or exclusion from the premises where their caretakers expect them to be.

Accordingly, City marshals must notify the Department of Investigation before scheduling or proceeding with any eviction that would involve (1) the removal or relocation of children or senior citizens from the premises of a school, day care center, senior facility, or similar institution, or (2) the exclusion of children or senior citizens arriving at the institution, i.e., where executing the warrant before the institution opens, with no advance notice having been given to parents, guardians, and school bus operators, or affected seniors or their caretakers, is likely to result in children or senior citizens arriving and being turned away or relocated.  A City marshal may not proceed with such an eviction until the marshal (a) has consulted with the Department, (b) is assured that appropriate steps have been taken to minimize, as far as feasible, the risk that the eviction will result in the unplanned removal or exclusion of children or senior citizens from the institution, and (c) is advised by the Department that the marshal may proceed.

The Department, to minimize the disruptive effect of an eviction on children or senior citizens in the care of an institution, may advise a City marshal to schedule the eviction of a school, day care center, senior facility or similar institution for a time other than one between 8:00 a.m. and 5:00 p.m., Monday through Friday, provided that the warrant is executed at a time permitted by § 749(2) of the Real Property Actions and Proceedings Law.

Marshals are encouraged to take reasonable steps, either directly or through the landlord, the landlord’s attorney, or the Court, to elicit, in advance, the cooperation of an institutional tenant’s management, so that when the marshal arrives at the premises on the scheduled date of eviction, the children or senior citizens will be elsewhere.  Reasonable steps might include notifying the institutional tenant’s management, in advance, of the scheduled eviction date and time and specifically requesting, or seeking a court order directing, that the institutional tenant’s management make any necessary arrangements so that at the scheduled eviction time, if there is no court-ordered stay in effect, the children or senior citizens will be elsewhere and will have been given an opportunity to remove their personal belongings.  If such arrangements have been made, the Department will advise the marshal that the marshal may proceed on the scheduled date, provided no children or senior citizens are present.  If, however, the institutional tenant’s management is uncooperative, or if it refuses or fails to make the necessary arrangements to ensure that the children or senior citizens are elsewhere at the time of the eviction, or if the landlord interferes or refuses to cooperate with the marshal’s efforts, the marshal must notify the Department, and the Department may recommend the intervention of the Court or the appropriate regulatory and licensing agencies and, if necessary, the police.

Nothing in this section is intended to deprive any person or institution of his, her, or its legal rights, or to discourage any person or institution from pursuing all appropriate legal remedies, or to delay or expedite any particular eviction.  This section is solely to ensure that City marshals, in performing their duties, take precautions to avoid exposing children and senior citizens in the care and supervision of institutions to unnecessary risks and disruptions.

Section 6-10: Animals

If a marshal finds any living animals in an apartment where he is enforcing a warrant, he must notify Animal Rescue to remove such animals. Marshals should note that §355 of the Agriculture and Markets Law states that "A person being the owner or possessor, or having charge or custody of an animal, who abandons such animal, or leaves it to die in a street, road or public place,...is guilty of a misdemeanor."

As in all cases wherein the marshal is required by law to perform an official function and incurs expenses in connection therewith, any fees or charges paid to Animal Rescue under the above-mentioned circumstances are reimbursable expenses.

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Section 6-11: Show Cause Orders

If, during the course of performing an eviction, a marshal is served with an Order to Show Cause, he should immediately halt the eviction. If property has been placed on a truck, every effort should be made to facilitate an arrangement whereby the property is taken off and placed back into the apartment. If such an agreement cannot be made, the property on the truck should be taken to a licensed warehouse and any other property should be returned to the premises. If the show cause order has been served after its appearance date, a marshal must inform the tenant that the order is not valid, and the marshal may execute the warrant. If the show cause order has not been served within its prescribed time for service, but is served prior to its appearance date, the order must be honored.

Oftentimes, the marshal arrives at the eviction site and is served with an Order to Show Cause which is returnable on the same day as the eviction, but the time listed on the Show Cause Order for the Court appearance has already passed, and neither the landlord, the marshal nor the landlord's attorney have been previously served. In this situation, before proceeding any further with the eviction, the marshal must make a good faith effort to ascertain, from court personnel, the disposition of the Order to Show Cause. If after making such good faith inquiry, the marshal cannot ascertain the disposition of the Order, he may not proceed with the eviction on that same day.

If after making such good faith inquiry, however, the marshal is informed by court personnel that the tenant's application for an order was denied, then the marshal may evict the tenant on that same day provided that no additional 72-hour notice is required by the court or this Handbook. (Requirements for service of additional 72-hour notices of eviction are set forth in Chapter IV, §5-4 of the Handbook). Note that the marshal may proceed only after he has been informed by court personnel that the Order to Show Cause was either denied or not on the calendar. The marshal may not rely on information provided by the parties or their attorneys regarding the disposition of the Order.

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Section 6-12: Valuables and Third Parties

If the tenant is present during the eviction or legal possession, it is important that such tenant be informed that he or she may remove any personal property or valuables.  A list of what the tenant removes should be made (see Chapter IV, § 6‑4).  If a third party appears during the eviction or legal possession, identifies himself or herself as a friend, relative, or neighbor and asks to remove certain property, a marshal must not release any property until the marshal is satisfied that the person has the authority to take the property.  A list of the articles removed is to be prepared by the marshal with the person's full name, address, and signature.

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Section 6-13: Notification of Location of Property

After the warrant has been executed, a marshal is required to notify evicted tenants, in English and in Spanish, of the whereabouts of their property. A notification form, which may be obtained from the Bureau of City Marshals, must be affixed to the front door of the apartment.  A notice must be posted regardless of whether the marshal has performed an eviction or a legal possession, and regardless of whether the property is stored in a private warehouse, is left in the vacated premises, or is otherwise left in the care and custody of the landlord.  In the case of a legal possession it is sufficient for the notice to state that the property is in the custody of the landlord without specifying the location.  If an eviction or legal possession prevents customers from retrieving personal property from a business such as a laundromat, the marshal must post reliable contact information for customers to utilize to retrieve their property. 

A copy of the Notification of Location of Property form must be provided to the tenant if he or she is present during the eviction.  If the tenant is not present, the marshal must make a copy of the form available to the tenant upon request.

The notifications must be printed on paper which is at least 8.5 x 6.75 inches.  As with all forms and notices used by marshals, they must be imprinted with the marshal's name, address, telephone number, and badge number.

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Section 6-14: Revival of Landlord-Tenant Relationship

The RPAPL provides that the issuance of a warrant to remove a tenant cancels the lease and terminates the landlord‑tenant relationship. However, if, after the warrant has been issued in a non-payment summary proceeding, the tenant offers and the landlord accepts the entire rent arrears as set forth in the petition, the landlord may be deemed to have agreed to continue the tenancy and to have waived his or her rights to consider the lease cancelled. 

(The landlord's acceptance of partial payment of rent in a non-payment proceeding, or of rent after commencement of a holdover proceeding, or after a judgment awarding him or her possession  does not by itself disturb his or her right to possession. )  The controlling factor is the landlord's intent when he or she accepts the money.  The landlord may accept the money from the tenant and still retain the right to possession of the premises if it was the landlord’s intention not to revive the landlord tenant relationship at the time of the acceptance.

In a non-payment proceeding, where the tenant's premises are subject to rent control, the tenant can effect a stay of eviction by paying the entire rent due at any time before the warrant of eviction is executed.   Although issuance of the warrant cancels the lease, the statute provides that the tenant shall not be removed so long as he or she pays the rent to which the landlord is entitled.   One court has held that the eviction is stayed even when the landlord rejects the rent payment.   A rent-stabilized tenancy requires a lease, but is also protected by statute.   The statutory protection continues so long as the tenant is in possession of the premises, including after a warrant has been issued.   Therefore, in a non-payment proceeding, a rent-stabilized tenant who pays or tenders all the rent due before the warrant is executed may be able to obtain a court-ordered stay of eviction.

The discussion of the law in this section is for the information and guidance of city marshals only.  A marshal must not offer legal advice to any party to a summary proceeding. Marshals also must not substitute themselves for the court as the body to resolve issues between the parties.  Where the parties disagree as to whether the tenant's payment or tender of the rent should stay the eviction, they should be referred to the court.

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Section 6-15: Securing the Premises

After all of the tenant's property has been removed, or after the landlord has been given possession, the marshal must secure the premises by seeing to it that the lock is changed and leaving the key with the landlord or the landlord’s representative.  The marshal must remain on the premises until the locks have been changed or the premises have been adequately secured.  Marshals are advised that to ensure that the premises are adequately secured and in the possession of the landlord, the marshal, wherever feasible, should require all persons present during the marshal’s execution of the warrant of eviction, including but not limited to the landlord or his or her representative, to step outside the premises before the marshal completes the eviction.  The marshal should then exit and lock or otherwise secure the premises and leave the key to the changed lock with the landlord or landlord’s representative, outside the locked door, after posting the notification form required by Section 6-11 of this chapter.

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Section 6-16: Re-entry by Dispossessed Person

Once a warrant of eviction has been executed and the landlord is placed in possession, the summary proceeding is terminated. If a tenant re enters and takes possession, the marshal cannot re execute the warrant and “re evict” him. An exception is where a court order specifically directs the marshal to re execute the warrant.  Absent such court order, it is up to the landlord to call the police to have the tenant ejected as a trespasser. Every marshal must cooperate when asked by the police to show their court warrant.

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Section 6-17: Controlled Substances; Drug Enforcement Administration Notification

Prior permission is required from the U.S. Department of Justice, Drug Enforcement Administration (DEA) in all instances where a marshal or persons acting at his or her direction will transfer or come into possession of a controlled substance.  Therefore, before executing a warrant of eviction at a premises used for a business or a profession involving the authorized sale or dispensing of controlled substances, such as a medical office or pharmacy, a marshal should inquire with persons familiar with the premises whether there are any controlled substances in the premises.  If a controlled substance is in the premises, the marshal must notify the DEA before proceeding and follow DEA's instructions to assure that the substance does not become available to unauthorized persons.  (See Chapter III, § 6-2).  As noted in § 6-5, contraband, including controlled substances found in premises not known to be used for a business or profession in which possession of such substances is authorized, must be reported immediately to the police.

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Section 7: REPORTS OF COMPLETED EVICTIONS 

The New York City Civil Court requires that within five days of execution the Court’s copy of the executed warrant of eviction must be returned to the Court by the marshal who requisitioned and received it, signed by the appropriate marshal, specifying the execution date, whether the execution was by full eviction or legal possession, and the Adult Protective Services (APS) control number, if one was assigned.

Executed warrants may be returned to the Court in batches by mail or by hand-delivery by an employee or agent. Each executed warrant must be returned to the same county, branch and unit, e.g., “warrant section,” of the Court that issued the warrant. When the mail is used, the envelope containing the warrant(s) and the transmittal form required by Section 7-1, as detailed below, should be marked “ATTENTION: RETURNED WARRANTS CLERK.” The date each executed warrant is returned must be recorded on the marshal’s docket book page or in the marshal’s computerized docket record of the case.

Section 7-1: Itemized Transmittal Forms Listing All Executed Warrants Returned to the Court  

Each City marshal must return his or her executed warrants to the issuing county branch of the Court with a properly completed transmittal form, listing as a separately-numbered item each and every executed warrant being returned to that county branch of the Court at that time. The transmittal form must include the marshal’s name, badge number, address, telephone and fax numbers and e-mail address and the execution date or date-range of the accompanying executed warrant or warrants. The transmittal form must identify each executed warrant by Civil Court index number, marshal’s docket number, and title of action (petitioner and respondent). The warrants must be listed in numerical order, by Civil Court index number. If only one executed warrant is being returned, the transmittal form must be used, showing all the above information for that warrant.

The transmittal form must also include the following acknowledgement:

“Return of the above-listed warrants on ______________________________is acknowledged. (date)
_____________________________________
Clerk, NYC Civil Court”

The Court clerk, upon verifying that the Court has received all the executed warrants listed on the transmittal, will sign or stamp the acknowledgement on the form, scan the signed or stamped form, and return it to the marshal by e-mail, as an attachment. As an alternative, when a marshal returns the warrants with a properly completed transmittal form by hand-delivery, the clerk will have the option of immediately providing a signed or stamped copy of the transmittal form to the marshal or the person hand-delivering the documents for the marshal.

To track the status of their warrant-returns, marshals are further directed to retain in an “open transmittals” file, in paper or electronic form, a “control copy” of each completed transmittal form delivered or mailed to the Court until the marshal receives the signed or stamped copy returned from the Court. Marshals must also keep a copy of each executed warrant. Each marshal is advised and expected to monitor his or her “open transmittals” and to inquire with Court personnel within ten business days to ascertain whether the marshal’s “open transmittals” were received by the Court. If the marshal is informed that the Court did not receive or cannot find a particular transmittal form and the warrant(s) listed on it, the marshal must make and send additional copies of the transmittal form and the corresponding warrants to the Court. When the marshal receives the signed or stamped transmittal from the Court by email or return hand-delivery, the marshal should remove the “control copy” from the “open transmittals” file and retain the signed or stamped copy in paper or electronic form, organized by year, month, and county. Control copies may then be destroyed.

Copies of a model transmittal form are available from the Department of Investigation. Marshals must use a form that when properly completed will contain all the information and entries called for in the model form.

Section 7-2: Maintaining Year-to-Date Count of Completed Evictions, Possessions, and Ejectments  

Every City marshal is required to maintain in the same form as required for the annual financial statement an accurate year-to-date count and summary of evictions, possessions, and ejectments conducted in each county. This information must be maintained on an ongoing basis, starting on the first business day of the year and continuing through the last business day of the year. Marshals may be required to provide this information to the Department at any time.

Marshals who do not maintain their official records in Department-approved computerized form in accordance with Chapter XII of this Handbook are advised to develop alternative tracking procedures, using their official diaries of daily activities, the standard summary form included in the annual financial statement, and other records to maintain the required running year-to-date count and summary of evictions, possessions, and ejectments.

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You Should Know