August 2015: Business Law

Know options for eviction petition

Columnist Larry Covell

Columnist Larry Covell

This is a second column in a three-part series concerning landlord-tenant evictions from the perspective of the landlord or small business owner. In the last column, I discussed the types of actions, non-payment and holdover proceedings, the required notices and methods in which the notices can be served on the tenant. The next step in most evictions proceedings is the “notice of petition” and the “petition.” Each legal document must contain certain information about the summary proceeding or the action will be dismissed as defective.

The notice of petition is designed to inform the tenant with notice of the proceeding and the remedy or remedies that the landlord is seeking. The notice of petition must state the time and location of the court appearance and the description and address of the premises which is being rented, and the tenant must assert a defense or be barred from asserting any similar types of defenses in any related legal proceedings. In north country courts, only a judge, an attorney, or clerk of the court can issue a notice of petition. Many landlords think that they can sign the notice of petition when they are acting as their own attorney, but this assumption is false. If the landlord signs the notice of petition, it is defective and the action is dismissed.

The petition contains more information than the notice of petition. The landlord must set forth she he is the owner or has an interest in the premises, the description and location of the premises, facts about the relationship between the landlord and tenant that give rise to the action, a statement that sets forth the remedy the landlord is seeking, return of the rental premises, eviction which is called a “warrant of eviction,” and a monetary award for unpaid rent. In addition, if unpaid rent is sought, the petition must state dates for which unpaid rent is owed.

Depending on whether the action is for nonpayment or a holdover proceeding, more specific information is needed in the petition. If the action is for nonpayment of rent, the petition must state when and how the demand for payment was made on the tenant. In a holdover proceeding, the petition must show how the predicate notice was served on the tenant and in some cases the petition must state that sufficient time has lapsed before the initiation of the summary proceeding.

Once the notice of petition and petition are complete, they must be served on the tenant. The service must be timed so that the service is complete no less than five days or no more than the 12 days before the hearing date. Service of the notice of petition and petition are can be made in three ways: personal service, substitute service or “nail and mail” service. Although anyone over the age of 18 and not a party to the proceedings can act as a process server, the best option for a landlord is to hire a professional process server.

Personal service is deemed the best method of serving court papers on anyone since the process server personally gives the notice of petition and petition to the tenant. Substitute service occurs when the process server has difficulty locating the tenant and, as a result gives the notice of petition and petition to someone of “suitable age and discretion” at the rental premises. A person of “suitable age and discretion” can be a spouse, mature child or other adult at the premises. Additionally, the process server must mail a copy by regular first class mail and certified mail to each named tenant in the notice of petition and petition.

The third method of serving the eviction papers is called “nail and mail.” It is not the preferred method of service. The method requires the process service to visit the premises at least twice at different times of the day. The process server must affix — “nail” — the notice of petition and petition in a conspicuous location and mail a copy by regular first class mail and certified mail to each tenant named in the notice of petition and petition. Under “nail and mail,” a landlord cannot seek unpaid rent unless the process server has made three attempts at servicing the tenant at different times of the day. This type of service can lead to a lot of confusion on the part of the landlord. If the process server fails to make the proper attempts to serve the eviction papers, the landlord can get the warrant of eviction, but s/he must initiate a money judgment action in small claims court to get any unpaid rent.

In my next column, I will discuss the various options of the tenant in the eviction process.

Larry Covell is a professor of business at SUNY Jefferson and an attorney. Contact him at His column appears every other month in NNY Business.