TenantNet Forum

Where tenants can seek help and help others

Will the marshal just show up?

NYC Housing Court Practice/Procedures

Moderator: TenantNet

Will the marshal just show up?

Postby Ray Vincent » Fri Mar 15, 2013 10:34 am

I agreed by stip about three months ago to move at the end of March, and my family has found a new apartment. We will probably need an extra week or two to complete the move. The stipulation we signed with our landlord says, among other things:

"Warrant to issue forthwith and execution is stayed through 3/31/13..."
"Upon default a warrant may execute after serving of the marshal's notice."

We have paid the rent through the end of March. The landlord won't agree to give us the extra time. I am hoping that the marshal will serve a paper rather than just show up to evict us, which would give me an opportunity to get an order to show cause that might buy us the extra time we need to complete our move. Are we compelled to be out by the 31st "or else"?
Ray Vincent
Posts: 17
Joined: Wed Sep 30, 2009 8:40 am

Postby TenantNet » Fri Mar 15, 2013 1:04 pm

First, in our opinion, you made a big mistake by agreeing to a stipulation that calls for your eviction and give the landlord a judgment. Even if the situation seemed to be without hope, there are things you can do. Did you have a lawyer? If for no other reason, a judgment will now likely have an adverse impact on your credit rating. See the information on Blacklisting in this forum's reference section. You may have secured a new apartment, but if you lose that, then the previous eviction might impact you.

I think many of your questions can be answered from this article by City-Wide Task Force on Housing:

Eviction Notice From a Marshal
Who can evict me from my apartment?

Only a city marshal or sheriff can legally remove you from your apartment. It is illegal for your landlord to lock you out. A marshal or sheriff will show you a badge when he or she knocks on your door. The marshal must serve you a notice before he or she can evict you.

When can the marshal come to evict me?

You must first be served with a marshal’s notice of eviction, sometimes called a 72-hour notice or a 6 day notice. It will include your court index number, the marshal’s name, address, and phone number and the date that the notice was served on you. It can be served by the marshal or a process server acting for the marshal. It should be delivered to you by hand. If it is not delivered by hand, then it should be taped to or slid under your door and also mailed to you by certified and regular mail.

If you were served the notice by hand, you have 4 business days before the marshal can evict you. If the notice was taped or put under your door but not handed to you, you have 6 business days before the marshal can evict you.

Marshals set their schedules every day at 3pm for the next day and you can call the marshal on your notice to find out if you have been scheduled for eviction.

How can I stop an eviction?

If you receive a marshal’s notice, and you want to stop the eviction, you must go to court to file an order to show cause (OSC). This is a form that you will fill out asking the judge to reopen the case. Write why the eviction should be stopped. If the judge signs the OSC, you will get a hearing at a later date. In order to stop the eviction, you will need to serve a copy of the signed OSC on the marshal and the landlord. If you do not serve the OSC on the marshal correctly, you might be evicted.

What happens when the marshal comes?

A landlord must have a final judgment from the court in order to contact the marshal to proceed with an eviction. The landlord can ask the marshal to perform an eviction or a possession. If you refuse to let the marshal into your apartment, he or she can use force to enter the apartment.

Possession: A possession means that the marshal will order you to leave the apartment and change the lock on the door. It will then be your landlord’s responsibility to move the belongings to storage if you do not make arrangements to remove them.

Eviction: A full eviction means that the marshal removes all of your belongings from the apartment and moves them to storage.

What if the marshal has come out, do I have time to go to court?

First, collect all of your important personal items, legal papers and anything of value that you can carry. Also, remember to take any medications. You can go to court to ask the judge for an order to stop the landlord from renting the apartment to someone else and give you time to come up with the rest of the money.

You will need to show the judge some proof that you will have the money. If the marshal came while you were not home, you can still go to court and file an order to show cause. You can ask the judge for access to the apartment to get important belongings, documents, and medications.

What if someone who lives in my home is sick, disabled or elderly or I am at the end of my pregnancy or have an infant at home?

If an adult is sick, disabled, elderly, at the end of a pregnancy, or there is an infant living in the home, get proof or a doctor’s note and fax it to the marshal. The marshal will then be required to refer your case to Adult Protective Services, a city agency, and APS will come to evaluate your household for services. This process can delay eviction by 2 weeks.

Can I get back into the apartment after I have been evicted?

After a city marshal evicts you, there is still a chance that you can get back into the apartment. To do this, go to court right after the eviction and do an order to show cause. The judge may allow you to go back to the apartment to get your belongings and the judge may allow you to stay in the apartment. Generally, you will not be allowed to stay in the apartment unless you have paid all of the back rent that you owe. You may also be required to pay legal fees or marshal fees before you can stay in the apartment again.

When you file the order to show cause, you can ask the judge to order the landlord to keep the apartment available for you and give you a chance to get all of the money that you owe.

If I stopped the marshal’s notice, can they still evict me?

After you serve the order to show cause on the marshal, he or she cannot evict you until after the next court date. When you go to the hearing, you will discuss with the judge and the landlord if you will get more time. The judge will determine if the marshal will have to re-serve you the eviction notice or if he or she can still execute the previous notice. Sometimes, the judge will order the marshal to re-serve you by mail.

A marshal’s notice is effective for 30 days from the date it was served. That means that a marshal can come back and evict you without re-serving the notice if it has been less than 30 days since it was served and the judge does not require re-service. If it has been more than 30 days since the last marshal’s notice was served, the marshal will have to serve you another notice and wait the 4 or 6 business days before evicting you.

What is an illegal eviction?

An illegal eviction is when someone other than the marshal or sheriff locks you out AND you were in the apartment for more than 30 days OR you paid rent for the apartment OR had a lease. If you have been illegally evicted, you can go to your local precinct for help.

According to section #21412 of the Patrolman’s Guide, a police officer should assist you in regaining access to your apartment.

Another option if the landlord illegally locks you out is to go to Housing Court and file an order to show cause to restore possession. Tell the clerk you were illegally locked out. You will need to know the landlord’s name and address in order to file the papers.

What is a constructive eviction?

A constructive eviction is when the landlord or management intentionally cuts off your heat or water or electricity or does something else to block you from entering or using your apartment. If your landlord does this, call the police. The police should force the landlord to restore your services. You can also file an emergency HP Action against your landlord in Housing Court.
Posts: 9500
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Return to Housing Court - NYC

Who is online

Users browsing this forum: No registered users and 2 guests