Marshals Notice and Orders to Show Cause to Stop Evictions
If you receive a Marshal’s Notice of Eviction it is necessary to act quickly. The Marshal’s notice was previously referred to as a seventy (72) hour notice but laws were recently changed to allow the tenant an additional three (3) days prior to the tenant’s eviction.
What the marshal’s notice means is that the city marshal can evict the tenant at anytime after six business days following the date of the notice.
If this is the first notice that the tenant receives of an eviction proceeding against the tenant, this means that a default judgment has been entered against the tenant and that the tenant will now be evicted. The tenant must immediately go to the housing court and obtain an order to show cause to vacate the default judgment that was entered against the tenant and to set the matter down for trial.
To successfully obtain an order to show cause the tenant must prove that he/she has a reasonable excuse for default and a meritorious defense to the landlord’s eviction proceeding.
The most common and most likely reasonable excuse for default is that the tenant never received court papers or any prior notice of the pending eviction proceeding. Additional reasonable excuses for default include, illness, traveling, not understanding English or being told by the landlord that there was no requirement to appear in court (landlord’s fraud).
Meritorious defenses depend on the type of case which the landlord has commenced against the tenant. If a Nonpayment proceeding was commenced by the landlord, meritorious defenses include, that the landlord is not providing essential services such as heat, hot water, security, extermination, sanitation etc. All of the foregoing constitute a landlord’s breach of its warranty of habitability and constitute a meritorious defense to a nonpayment proceeding. Additional meritorious defenses include that the rents being demanded have already been paid, rental overcharge or that the rent being charged is not properly registered with the New York state, Division of Housing and Community Renewal.
If a Holdover proceeding was commenced by the landlord, meritorious defenses include denying that the tenant was engaged in the objectionable conduct which is alleged in the petition, or even if the tenant was engaged in the conduct, that the tenant has now cured such conduct and no longer engages in it. If the landlord commenced a Nonprimary Residence holdover proceeding, a meritorious defense would allege that the apartment is actually the primary residence of the tenant or that the person now in occupancy of the apartment is entitled to succession rights.
If the landlord commenced an Owner Occupancy holdover proceeding, a meritorious defense would allege that the owner is in bad faith and the owner and/or its designated immediate family member does not actually intend to occupy the apartment as his/her primary residence. Also, if the tenant is aged 62 years or older, the owner is required to relocate the tenant to alternative comparable regulated housing accommodations at the same or lower rent.
We are very experienced Tenant Rights Attorneys and have successfully represented tenants in thousands of Landlord and Tenant Court eviction proceedings. We offer complimentary consultations. Please contact our office at 212-921-1600 to schedule a complimentary no-obligation consultation.