The Rent Case In Court
RPAPL §§ 731, 732, 733, 745 — the notice of petition, the answer, the hearing and adjournments
A case for unpaid rent follows the written rent demand, and it is a special proceeding started with a petition and a notice of petition. A notice of petition can be issued only by an attorney, a judge or the clerk of the court, never by a landlord bringing the case without a lawyer. The court may instead grant an order to show cause, served in place of the notice of petition.
Ten to seventeen days before the hearing. Unless a court's rules set the clerk's procedure described next, the notice of petition and the petition are served at least ten and not more than seventeen days before the time the petition is to be heard. The notice of petition gives the time and place of the hearing, and states that a respondent who does not raise and establish a defense at that time may be barred from raising it, or the claim it rests on, in any other proceeding or action.
Where a court's rules provide: ten days to answer. Where the appellate division's rules for a particular court apply it, a case for unpaid rent runs differently, and the notice of petition tells the respondent how. The notice is returnable before the clerk within ten days after it is served. If the respondent answers, the clerk sets a trial or hearing not less than three nor more than eight days after the issues are joined, and mails the date to both sides or their lawyers. If the respondent does not answer within ten days from the date of service shown on the proof of service, the judge gives judgment for the landlord, and may hold off issuing the warrant for no more than ten days from that date. After a decision for the landlord at a trial or hearing, the warrant is not held off for more than five days, apart from a stay on the occupant's application under section 753.
The full rent before the hearing. In a case based on unpaid rent, the landlord has to accept payment of the full rent due if it is made at any time before the hearing on the petition, and the payment makes the grounds of the case moot. After a judgment, the court vacates the warrant if the full rent due is paid or deposited with the court before the warrant is carried out, unless the landlord shows the rent was withheld in bad faith.
At least fourteen days' adjournment. Where the case raises issues of fact, the court tries them, unless a party demands a jury when the petition is to be heard. Once the issues are joined, the court adjourns the trial at either side's request for not less than fourteen days, unless all parties consent otherwise. A second or later request for an adjournment is up to the court.
In the city of New York the court may, weighing the equities and on the landlord's motion, order the respondent to deposit the rent or use and occupancy that comes due after the order. It may do so at the second of two adjournments granted only at the respondent's request, or on the sixtieth day after the parties first appear in court, counting only days of adjournments the respondent alone asked for and leaving out days the case was adjourned at the landlord's request, whichever comes first. Neither count includes a first adjournment that a respondent without a lawyer asks for to get one. Where the landlord means to ask for a deposit, the notice of petition says what this requires.
The court does not order a deposit where the respondent shows that one of these has been properly raised or established:
- The landlord is not a proper party to bring the case.
- Actual eviction, actual partial eviction or constructive eviction, where the respondent has left the premises.
- A defense under section 143-b of the social services law.
- Hazardous or immediately hazardous violations of the housing maintenance code in the apartment or the common areas.
- A colorable defense of rent overcharge.
- The unit violates the building's certificate of occupancy, or is otherwise illegal under the multiple dwelling law or the city's housing maintenance code.
- The court has no personal jurisdiction over the respondent.
The monthly deposit may not exceed the regulated rent, the tenant's share under a subsidy program, or the tenant's share under an expired subsidy unless the tenant has made an enforceable new agreement to pay the full lease rent. It leaves out any part paid by a direct government housing subsidy, a senior citizen increase exemption in effect, or a direct payment of rent or two party check from a social services district or the state office of temporary and disability assistance. A respondent whose household receives public assistance deposits only the shelter allowance part of the grant, and a respondent on a fixed income such as social security, supplemental security income or a pension deposits no more than thirty percent of the monthly payments.
A missed deposit. If the respondent does not deposit or pay on the due date, the court may, on the landlord's application, order an immediate trial: no more adjournments at the respondent's request alone, and a trial that starts as soon as practicable and runs from day to day until it is done. The court may extend the time for a deposit for good cause. Failing or being unable to pay as ordered is never a ground to dismiss the respondent's defenses or counterclaims, and at the final judgment the deposits are credited against any amount awarded. In the city the court may also dismiss a case without prejudice, with costs to the respondent, for excessive adjournments the landlord asked for.
A stay where a violation is on record. Where the municipal department that enforces the housing codes has issued a notice or order to remove a nuisance or violation or to make repairs, and the court finds the condition constructively evicts the tenant from part of the home or is, or is likely to become, dangerous to life, health or safety, the court may stay a case to evict for unpaid rent, or an action for rent. The landlord then has the burden of disproving the condition the notice or order describes. The court may also stay the case on proof of such a condition without a notice or order. No stay is granted where the tenant, or someone acting for the tenant, caused the condition willfully or negligently.
That stay is available only if the tenant deposits with the clerk the rent then due, counted as the rent for the month before or the monthly rent in the agreement. While the case goes on, it can be vacated on three days' notice if rent is not deposited within five days after it is due. Otherwise it lasts until the court vacates it, which takes three days' notice of a hearing and proof that the notice or order has been complied with. During the stay the court may, on three days' notice to everyone, release deposited money to a contractor or supplier for fuel, electricity, gas, janitorial services and repairs, on a showing that the landlord is not meeting those obligations; what remains goes to the landlord once the stay is vacated. Where the stay is granted neither side gets costs, except up to $25 against a tenant found to have caused the condition willfully.
Five days, then a certified letter. If a landlord has not received the rent within five days of the date the lease sets for it, the landlord, or whoever the landlord has authorized to collect it, sends the tenant a written notice by certified mail saying the rent was not received. A tenant can raise the landlord's failure to send that notice as an affirmative defense in an eviction case for unpaid rent.
A landlord who receives rent in cash, or in any form other than the tenant's personal check, gives the tenant a written receipt with the date, the amount, the premises and the period paid for, and the signature and title of the person who took it. A tenant can ask in writing for receipts for personal checks too, and unless the tenant says otherwise the request lasts for the whole tenancy. Rent paid in person gets a receipt immediately; rent sent another way gets one within fifteen days of the landlord receiving it. The landlord keeps a record of cash receipts for at least three years.
Which courts follow the clerk's procedure for unpaid rent is set by the appellate division's rules for each court, not by these sections, and is not set out here; neither are a court's own forms. A cooperative housing corporation may send the late rent notice to its own shareholders by another kind of mail where the proprietary lease or occupancy agreement provides for it, except for cooperatives under certain articles of the private housing finance law.
Sources for this section (9)
- RPAPL § 731 — Commencement; notice of petition
- RPAPL § 732 — Special provisions applicable in non-payment proceeding if the rules so provide
- RPAPL § 733 — Time of service; order to show cause
- RPAPL § 745 — Trial
- RPAPL § 711 — Grounds where landlord-tenant relationship exists
- RPAPL § 753 — Stay in premises occupied for dwelling purposes
- RPAPL § 749 — Warrant
- RPAPL § 755 — Stay of proceeding or action for rent upon failure to make repairs
- Real Prop. Law § 235-e — Duty to provide a written receipt
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed New York attorney.