Application for Judgment of Possession in New York

What Is an Application for Judgment of Possession?

Background

The court can award a landlord a judgment of possession when a tenant fails to comply with the clear and unambiguous terms of an order to pay interim use and occupancy. (Rose Assocs. v. Johnson, 247 A.D.2d 222 [1st Dept. 1998].) A judgment of possession extinguishes a lease between a landlord and tenant as well as any parties holding thereunder. (170 W. 85th St. Tenants Ass’n v. Cruz, 173 A.D.2d 338, 339-40 [1st Dept. 1991].)

Upon rendering a final judgment of possession, the court shall issue a warrant of eviction directed to the sheriff of the county of the city in which the property is situated. (Real Prop. Actions & Proc., § 749(1).) By giving a plaintiff his or her due process and involving a marshal or sheriff to properly execute a judgment of possession and a warrant of eviction, certains standards of care are afforded to the parties. (Facey v. Johnson, 49 Misc. 3d 1136, 1140-41 [Civ. Ct., Kings Cty. 2015].)

How to Structure the Motion

Section 711 of Real Property Actions and Proceedings Law requires that a tenant “shall not be removed from possession except in a special proceeding.” (Real Prop. Actions & Proc., § 711.) A summary proceeding is required to regain possession when “the tenant continues in possession of any portion of the premises after the expiration of his term, without the permission of the landlord.” (Id.)

Before commencing a summary proceeding to reclaim possession, the landlord must give the tenant notice of the breach, default, or termination of the tenancy (i.e., predicate notice), and failure to do so requires dismissal of the action. (Pepe v. Miller & Miller Consulting Actuaries, 221 A.D.2d 545, 546 [2nd Dept. 1995].) Every petitioner must also describe the premises from which removal is sought; failure to describe the premises with particularity has been held to be “fundamental” and grounds for dismissal in many cases. (Clarke v. Wallace Oil Corp., 284 A.D.2d 492 [2nd Dept. 2001].)

“Although resort to summary proceedings to regain possession of real property has become the rule rather than the exception, the common-law action for ejectment still survives in New York.” (Alleyene v. Townsley, 110 A.D.2d 674, 675 [2nd Dept. 1985].) “[E]jectment is an action at law to restore possession of real property to the party rightfully entitled to it. Where a party having a right to possession in real property is excluded from it, an action to recover real property enables enforcement of a right of entry against the defendant who is wrongfully denying possession.” (Aponte v. Santiago, 165 Misc. 2d 968 [Civ. Ct., Bronx Co. 1995].)

Response

“[U]nder the common-law doctrine of res judicata, a tenant who has been adjudged not entitled to possession in an action brought by the landlord cannot subsequently bring an action to recover possession on the basis of claims that could have been asserted in the first action.” (Henry Modell & Co. v. Ministers, Elders & Deacons of the Reformed Protestant Dutch Church, 68 N.Y.2d 456, 456 [1986].) A judgment of possession is conclusive, right or wrong, until reversed on appeal or set aside. (McLaughlin v. Hernandez, 16 A.D.3d 344 [1st Dept. 2005].)

The Court’s Decision

Because summary proceedings are designed to put landlords back into possession expeditiously, strict statutory compliance is essential to ensure that tenants are not unjustly evicted. (Mennella v. Lopez-Torres, 91 N.Y.2d 474, 478 [1998].) The elaborate set of notice requirements is necessary “to ensure that tenants are not unjustly evicted from premises without an opportunity to defend.” (Id.) Once a landlord has satisfied all statutory procedural requirements of notice and filing, the landlord is entitled to a prompt recovery of the premises. (Id.)

In an eviction summary proceeding, the court has subject matter jurisdiction only if the respondent is in possession of the premises when the proceeding is commenced. (Real Prop. Actions & Proc., § 711(1); Jah Jeh Realty Corp. v. Staten Is. Univ. Hospital-EAP, 839 N.Y.S.2d 433, 433 [App. Term. 2nd Dept. 2007].) Whether the tenant is in possession is a factual issue. (Riverside Research Inst. v. KMGA, Inc., 68 N.Y.2d 689, 691-92 [1986].)

A critical factor in determining whether the tenant has surrendered possession is whether the tenant has any dominion or control over the premises. (176 PM, LLC v. Heights Storage Garage, Inc., 157 A.D.3d 490 [1st Dept. 2018].) For example, surrendering keys to the apartment evidences surrender of possession, since keys are traditionally seen as a symbol of possession. (Fishel v. Baronelli, Ltd., 119 Misc. 2d 625, 626-27 [1983].) Actual occupancy is not determinative; where a tenant is no longer physically present in the apartment and has no possessions in the apartment, but does not surrender the keys, the tenant can still be considered ‘in possession’ for purposes of commencing proceedings. (Id.)

Documents for Application for Judgment of Possession in New York

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Onyx Ny Holdings, Llc v. Sandra Francis Commercial - Contract document preview

SUMMONS + COMPLAINT

7 pages

FILED: WESTCHESTER COUNTY CLERK 05/29/2024 02:46 PM INDEX NO. 63082/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/29/2024 SUPREMECOURTOFTHESTATEOFNEWYORK COUNTYOFWESTCHESTER ______-------- _______________---____________________--_________Ç ONYXNYHOLDINGSLLC, …