There are two basic types of commercial eviction summary lawsuits:
1. Nonpayment lawsuits
These are brought by landlords against tenants for the nonpayment of rent. The tenant must be in possession of the premises for the Landlord to commence a nonpayment proceeding.
The landlord is usually required to serve a rent demand before a lawsuit. If the amount demanded in the rent demand is paid, the tenant should not be sued.
If the amount demanded in the rent demand is not paid, the landlord may then start a lawsuit for the rent. This is called a Notice of Petition and Petition for Nonpayment. A Petition and Notice of Petition must be answered by the tenant and that answer must be filed with the Court. Failure to answer could result in the landlord obtaining a default judgment with the Court and Marshal and eviction of the tenant.
It is best to consult with an attorney if you are thinking of sending a rent demand. The demand must meet certain criteria or it can be rejected as being defective, costing the landlord time and money. It also must be served properly or it can be dismissed.
As a tenant, if you have received a rent demand or Notice of Petition and Petition for Nonpayment it is best to consult with an attorney. You may have rights and defenses against the landlord’s claims. Businesses in New York are required to have attorneys represent them. Your business must answer the Notice of Petition and Petition and the answer must be filed with the Court, or else you are in default and can be evicted. Once the answer has been filed, the Court will set a date to appear in Court.
2. Holdover lawsuits
Holdover Lawsuits – Fault: These are proceedings in which a commercial tenant violated a substantial obligation of the lease (i.e. nuisance, unauthorized subleasing, illegal activities, waste, unauthorized renovations, violation of Certificate of Occupancy, etc). Being represented by an experienced attorney is critical in this type of proceeding because a commercial tenant may apply to the New York State Supreme Court for a “stay.” The stay delays the time to cure the alleged breach until a Court determines whether the commercial tenant has violated the lease, costing the landlord time and money. This type of stay is often referred to as a ‘Yellowstone Injunction.”
Holdover Lawsuits – No-Fault: In this type of proceeding a landlord is entitled to possession of the commercial premises due to the lease’s expiration. This type of action does not allege that the tenant engaged in wrongdoing. This action can only be maintained where the lease has expired or if there is no lease in effect and a Notice of Termination has been served.
Prior to commencing a Holdover proceeding or if you have received a Holdover Notice of Petition and Petition, it is best to consult with an attorney.
If you are a commercial landlord or commercial tenant in New York and need legal advice, Justin Brasch can provide accurate legal direction to resolve your matter in an efficient and affordable manner. Mr. Brasch strives to prevent litigation. However, when it is unavoidable, his office aggressively pursues it to meet clients’ goals.