August 8, 2016: This Q&A post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Expert".
Hi, Michelle here. I am the LandlordsNY “Legal Expert”. My goal is to post in the blog all of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people. Let me know if this is helpful. These questions are excellent, keep them coming.
Question: “If a request to show just cause was denied 4 times can a tenant have it moved to a different judge?"
In all my teaching and writing on landlord and tenant law in New York City, I always emphasize to people that a landlord and tenant case has THREE (3) distinct phases, and they are all equally important.
Stage One is the Predicate Notice Stage. This is where you should be gathering tons of information and making sure that everything about the building and the tenant is in good order. This is also when your lawyer carefully drafts and serves whatever predicate notice is required – for example the Rent Demand or Notice of Termination. This is such an important stage because if you mess anything at this stage up, your case will likely be dismissed later on a technicality.
Stage Two is the actual court proceeding – the notice of petition and petition, motion practice, trial.
Stage Three is the phase that comes AFTER THE COURT CASE. This is where you obtain a warrant, where tenants bring multiple orders to show cause, where you have an appeal or an attorneys’ fees hearing.
The problem I find in the landlord and tenant legal space is as follows. Both owners and lawyers tend to only focus carefully on Stage 2 – the in-court phase. This might be because of all the court shows on TV. I have no idea. However, the truth is that Stage One (Before Court) and Stage Three (After Court) have MORE to do with getting a landlord a desired result than what happens in court. That might sound counter-intuitive to you, but it is true.
Now to specifically address your question. You have gotten the result you wanted in court -- a judgment of possession – that has finally led to a warrant of eviction. But the tenant has brought multiple orders to show cause and delayed the eviction repeatedly. Now, just when it looks like the judge assigned to the case is at the end of her rope, and will NOT grant any more time, just at that moment the tenant does another order to show cause that goes to a new judge. The new judge does not know the file so well, so she grants the order to show cause.
First, let me say this. No tenant can PICK a judge for an order to show cause, and nothing a landlord’s lawyer writes in a stipulation with the tenant can prevent an order to show cause from being diverted away from the judge assigned. The court is busy, and it decides what judge sees which order to show cause.
What CAN you do to minimize the order to show cause abuse process by tenant? Here are my suggestions.
(1) Be very responsive. Do not just show up to court on the return date of the order to show cause without papers. Rather, write opposition papers. Many lawyers do not take this extra step, but my experience is that it helps. In such papers, describe the long journey that the case was for the landlord. Talk about how much the landlord has lost in terms of rent and legal fees. Explain why the tenant’s latest position is wrong. Create a record in the file for a future judge presented with an order to show cause to see.
(2) If a tenant has done many orders to show cause before, then the next time they pull the same game, you can do your own order to show cause to cancel the tenants order to show cause! This is pursuant to Civil Practice Law and Rules § 2221. It is called making a motion affecting a prior order. These are not always granted, but in an extreme case, it is worth a shot.
(3) You can, of course, ask that the judge mark a file “No Further Orders to Show Cause”. Even if you can get a judge to do this, however, other judges may not honor it. This idea does not hurt, however.
(4) Do not delay in other areas. The Marshal must be contacted to re-schedule the eviction. When contacting the Marshal by phone to schedule an eviction, have available the index number and docket number for the case. The Marshal is required to serve tenant with a notice of eviction at least five days prior to the eviction if the notice is served personally (“Marshal’s Notice”). If the Marshal’s Notice is served by mail, there must be five (5) business days’ notice. The Marshal’s Notice does not begin to run until the day after it is served and weekends and holidays are not included in the time calculations. The eviction may take place at any time after the expiration of the Marshal’s Notice. New York City Marshals Handbook Chapter IV, § 5. The eviction must take place within thirty days of the service of the Marshal’s Notice or the notice must be reserved. New York City Marshal’s Handbook, Chapter IV, § 6-8. So, for example, if after the Marshal’s Notice is served Tenant gets an order to show cause staying the eviction, but the order to show cause is subsequently denied after thirty (30) days from the earliest eviction date on the Marshal’s Notice, the Marshal needs to re-serve the Marshal’s Notice. It is imperative that you try to get the Marshal moving after the resolution of an order to show cause.
Thank you for this great question. Finally, I am obligated to say that this post is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between the reader and I or between the reader and LandlordsNY.
Michelle Maratto Itkowitz