INTRODUCTION

You can be legally evicted only after there has been a court proceeding. The only person who can evict you is a city marshal or sheriff. A marshal's notice of eviction will contain the marshal's name, address and phone number. It will also state that you may be evicted very soon.

AN EVICTION NOTICE CAN BE SENT TO YOU IF:

you signed an agreement (stipulation with the word "judgment" in it) in the court and you did not fulfill the terms of the agreement,

OR

you had a trial and lost the case,

OR

you were not served court papers, or did not appear at a scheduled hearing.

If you received your eviction notice in hand (personal service) the marshal may come to evict you three (3) days after you were served (this does not include Saturday, Sunday or holidays). If you received your eviction notice through the mail you have six (6) days, from the date of the notice, before the marshal can come to evict you.

If you have received an eviction notice from a marshal, you can go to the Housing Court, in your borough, to file an order to show cause. You have a very short period of time before the marshal can come to evict you.

WHAT IS AN ORDER TO SHOW CAUSE (OSC)

An Order to Show Cause is a request that allows a tenant to ask the court to temporarily stop an eviction so that the judge can consider some overlooked or new information. For example, a tenant may seek an order to show cause because something beyond his/her control has made it impossible for him/her to fulfill the terms of the agreement made in court (stipulation). This may happen if the Department of Social Services (Public Assistance) is unable to issue checks on time or denies an application for a one shot deal. If you are unsure whether you should file an OSC, you may want to speak with a Housing Court Counselor (Pro-Se Attorney).

Due to recent changes in the law, a judge may not be able to stop (stay) the marshal from evicting you. If you have been to court and signed an agreement (stipulation) which contains the word "judgment", and five days have passed, the judge may not have the power to delay the eviction unless all the money in the "judgment" is paid to the landlord or the court. IF YOU WERE NOT SERVED WITH COURT PAPERS, AND/OR HAVE NOT BEEN TO COURT BEFORE AND RECEIVED AN EVICTION NOTICE ON THIS PROCEEDING, THIS NEW LAW DOES NOT APPLY TO YOU. IT ALSO DOES NOT APPLY TO HOLDOVER CASES.

ILLEGAL LOCK-OUT

If you have been illegally locked out; of your apartment by your landlord, the superintendent, or anyone other than a marshal or sheriff, you can go to your local police precinct for help. According to patrolman's guide, Sec. #117-11, a police officer should assist you in regaining access to your apartment.
You can also go to Housing Court to file an "Order to Show Cause to Restore to Possession."

IF YOU NEVER RECEIVED COURT PAPERS

If you claim that you never received the petition and notice of petition, or any legal papers before you received the marshal's eviction notice; you have the right to a hearing on this issue alone. It is called a "traverse hearing." At the traverse hearing, the landlord will have to prove that legal papers were properly sent to you before you received the marshal's notice. A process server, who is hired by the landlord to deliver papers, may testify that s/he personally delivered those papers. You can go to the clerk's office and ask to see your court file. The file should include an affidavit stating when and how the landlord claims the papers were delivered.

If the judge decides in your favor, the landlord's case may be thrown out of court (although, the landlord may immediately begin a new case against you). If the judge finds in the landlord's favor the judge may allow you to be evicted. The traverse hearing can be difficult for a non-attorney. You may want to speak with the pro-se attorney about the hearing process.

GETTING A COURT ORDER TO STAY AN EVICTION

If you have received a marshal's notice following a court proceeding, you can request an affidavit form for an "Order to Show Cause to Restore to the Calendar". You should read this form very carefully. After you have written responses to each section, you should initial the statements that apply to your case.

You must explain what happened on your last court date and the "excuse" or the reason that you need an OSC. If you signed an agreement that you could not keep or missed the court date, you must have a good excuse. Be specific when writing your explanation or excuse. You should also state how you will comply with the agreement (either, when and how you will pay the money or when you can move out) or why the agreement should be changed.

You should state your "defenses" - the reasons why the landlord should not evict you. These reasons can include: prior payment of the rent, lack of services or repairs (such as heat and hot water, etc.), that the money is not owed, or that approved welfare payments have not yet been made. If you have documents that support your case, they should be photocopied and attached to your OSC.

Once you have filed your order to show with the clerk, you will generally be told to wait until the judge reviews your papers. In some instances, you will be told to take it to the judge, where you will wait.

IMPORTANT:

• Do not leave the court without receiving a copy of your order to show cause signed by a judge or you may be evicted.

• Make sure you understand the way in which you should serve the landlord (attorney) and the marshal.

• The Order to Show Cause will state the date, time and courtroom you must return to. Don't be late.

SERVING THE PAPERS

The names and addresses of the people you must serve (deliver) and the way that you are to serve them are indicated on the bottom of the order to show cause, which has been signed by the judge. It will also tell you the deadline for serving these papers. You will be given several copies of the signed OSC (a copy each for you, the landlord and/or his attorney and the marshal). If your order to show cause requires personal service, take one copy to the marshal's office first. Then take a copy to the landlord and/or his/her attorney. Have the person who accepts the papers sign the back of your copy. If they refuse, write down the date, time, office address, and a brief description of the person you saw. In some cases, your OSC will allow service by certified mail. Do not wait to serve the marshal and the landlord or his/her attorney. The papers must be served on the marshal to stop the eviction.

YOUR DAY IN COURT

On the day that you return to court bring your copy of the OSC with you. You must show the judge that you served the papers in the manner indicated on your signed OSC. If you were allowed to serve the papers by certified mail/return receipt requested bring the receipt with you. Also, if the OSC required you to deposit money with the court, you should bring proof that you made the deposit by the specified date. Go to the room at the time indicated on your OSC and listen for your name to be called. State your case clearly to the judge and tell him/her what you think is a fair resolution to the case.

IF YOU HAVE ALREADY BEEN EVICTED BY THE MARSHAL

If you have already been evicted by a marshal you can go to court and fill out an "Order to Show Cause to Restore to Possession". This may stop the landlord from re-renting your apartment, or removing your belongings, or allow you to enter your apartment to get certain items.

STEP BY STEP SUMMARY

1. You receive a marshal's notice. Call the marshal to find out what day s/he intends to evict you.
2. Go immediately to the clerk's office in Housing Court to get an OSC.
3. If time permits, contact someone, such as the pro-se attorney, who can give you information that might help you fill out the form.
4. Once you have filled out the OSC, bring it back to the clerk's window. Sign the affidavit in front of the clerk. You must wait until your papers are processed and given back to you.
5. If the judge signs the OSC, you will be given several copies- one for the Marshal, one for the landlord and one to keep; the original is the courts copy.
6. Take the OSC to the Marshal's office. Have the Marshal sign the back of your copy.
7. Take a copy to the landlord and/or his/her attorney. Have the person who accepts the papers sign the back of your copy. If the landlord refuses to accept the papers leave them on the desk. Write a statement explaining that the papers were left with the landlord and have it notarized. Attach this to your copy of the papers.
8. Go to court on the date indicated on your OSC. Do not be late.