How to Legally Evict a Tenant in Upstate New York (Step-by-Step Guide for Landlords)
This step-by-step guide will walk landlords through the residential eviction process in upstate NY – from the initial notice to the final removal – highlighting legal requirements and common pitfalls to avoid. Follow these steps to ensure your eviction is legal, effective, and enforceable, and remember that professional help is available if you need it. Call (716) 218-8614 for personalized legal guidance at any stage of the eviction process.
Upstate New York landlords cannot evict a tenant without following the proper legal process. Every eviction for a residential tenant must go through the court system and result in a warrant of eviction signed by a judge. Attempting to remove a tenant by force or intimidation (for example, changing locks or shutting off utilities) is unlawful and can subject a landlord to criminal charges and penalties.
Step 1: Serve the Proper Termination Notice or Rent Demand
The first step in a legal eviction is giving the tenant a written notice that the tenancy will end or that rent must be paid. The type of notice and the time frame required depend on the reason for eviction:
Non-Payment of Rent: If the tenant has not paid rent, you must serve a Rent Demand Notice giving the tenant 14 days to pay the overdue rent or vacate. New York law (as updated in 2019) requires a 14-day “pay or quit” notice for residential nonpayment evictions. This notice should state the exact amount owed and clearly inform the tenant that if they do not pay within 14 days after receiving the notice, the lease will terminate and an eviction case will be filed.
Pitfall to avoid: Failing to wait the full 14 days or not including the required language can get your case dismissed. Also note, under current law, if a tenant is more than 5 days late on rent, landlords are required to send a written notice of the late rent (often by certified mail) within those 5 days. If you neglect this 5-day late notice, the tenant might raise it as a defense to delay the eviction. Always document service of the rent demand – have an adult (not you) deliver it and keep proof of service.
Holdover (Lease Expiration or Month-to-Month Tenancy): If you want to evict a tenant whose lease has ended or a month-to-month tenant (for reasons other than non-payment), you must give a notice of termination well in advance. New York’s Real Property Law §226-c now mandates 30, 60, or 90 days’ notice depending on how long the tenant has lived in the unit. Specifically, you must give at least 30 days’ notice if the tenant has lived there under a year, 60 days if between one and two years (or if they had a lease of at least one year), and 90 days if over two years or a lease term of two years or more. This notice tells the tenant their tenancy will end on a specified date. Pitfall: Serving too short of a notice (for example, only 30 days when the law required 90) is a common mistake that will result in the case being thrown out – you would have to start over with a proper notice. Make sure the termination date in the notice is at the end of a rental period and gives the full required time.
Lease Violations or Nuisance: If the tenant violated a lease term (other than nonpayment), or is causing a serious nuisance or illegal activity, the law may allow a faster holdover eviction. Often, the recommended practice (and in some cases required by lease or local rule) is to first serve a Notice to Cure giving the tenant a short period (e.g. 10 days) to fix the violation. If they don’t cure in time, you would then serve a Termination Notice (often 30 days) ending the tenancy due to the breach. In cases of serious illegal conduct (for example, using the property for illegal trade or as a drug den), an unconditional notice to quit can be given without a chance to cure, allowing an eviction case to proceed immediately. These situations are complex – if you believe you have “good cause” to evict immediately, consult an attorney. Call (716) 218-8614 for personalized legal help on handling specialized eviction notices.
Avoid Common Notice Pitfalls: Always serve notices in writing and keep proof. The notice should be delivered by someone over 18 who is not a party (or by certified mail where allowed), and it’s wise to document the date and method of service. If you don’t serve the correct notice, or if you file too soon before the notice period expires, the court can dismiss your case (though you’d typically be allowed to start over after fixing the error). This wastes time and money. By ensuring the notice requirements are met to the letter of the law, you set a strong foundation for a successful eviction case.
Step 2: File an Eviction Petition with the Court
If the notice period has passed and the tenant has neither remedied the issue nor moved out, the next step is to start a formal eviction proceeding (also known as a summary proceeding) in court. In upstate New York, residential eviction cases are usually filed in a local court with jurisdiction over the property: this could be a City Court, a Town or Village Justice Court, or in some areas a County Court – it depends on your county and municipality
The safest approach is to contact the nearest court (or check the county court website) and confirm which court handles landlord-tenant cases for your property’s location. Pitfall: Filing in the wrong court or wrong county will delay your case, as it may be dismissed or transferred.
When filing, you will need to prepare two key documents: a Notice of Petition and a Petition. The Petition is the eviction complaint – it states the facts and grounds for eviction (e.g. “Tenant failed to pay $X rent for these months” or “Tenant’s lease expired on ___ and was given proper notice to vacate”)
It should also list all adult occupants’ names, the address of the rental property, and request a judgment of possession (and any rent arrears if you are also suing for unpaid rent). The Notice of Petition is like a summons – it is a paper that tells the tenant when and where the court hearing will take place
In New York, a Notice of Petition can be signed by an attorney, a judge, or the court clerk, and it will specify the court date and time. When you file these papers with the court, you will pay a filing fee (call the court ahead or check their website to find the current fee). The clerk will assign an index or case number and a court date, and will stamp the Notice of Petition and Petition.
Important details: Attach to your Petition a copy of the termination notice or rent demand you served, along with an “affidavit of service” showing how and when you served that pre-eviction notice (many courts require proof that you gave the requisite notice before you could file the case)
For example, in a non-payment case, you should attach a copy of the 14-day rent demand and the affidavit from whoever served it. Make sure the Petition is complete and accurate – under RPAPL §741, it must include certain information (like the landlord’s interest in the property, the respondent’s interest, and a description of the premises). Any mistake in the paperwork could give the tenant a defense to dismiss the case. This is a stage where legal guidance can be invaluable – if you want assistance drafting and filing the eviction petition properly, call (716) 218-8614 and our office can help ensure everything is in order.
Step 3: Serve the Tenant with the Court Papers
Filing the case is not enough – you must properly serve the tenant with the Notice of Petition and Petition after filing. New York has very specific service rules for eviction cases, and improper service is a common pitfall that can derail an eviction. Here’s what you need to do:
Who Can Serve: The landlord cannot serve their own eviction papers. Service must be done by a third party who is at least 18 years old and not involved in the case (often a professional process server or a friend/employee not named in the case).
When to Serve: The timing is strict. The papers must be served no fewer than 10 days and no more than 17 days before the court date specified in the Notice of Petition
(This is the rule for upstate cases under RPAPL §733; it applies to most eviction proceedings now.) What this means in practice: once you get the court date from the clerk, count backwards – you cannot serve earlier than 17 days before that date, and you must serve at least 10 days before the date. The server will need to sign an Affidavit of Service stating when service was done; that affidavit itself must be filed with the court within 3 days after service. Also, service cannot be done on Sundays or certain holidays (service on a religious observance day is not allowed either), so plan accordingly.
How to Serve: New York law allows three methods of service for eviction petitions:
Personal Delivery: Handing the papers directly to the tenant in person. This is ideal if it can be done.
Substituted Service: If the tenant is not home, the server can leave the papers with someone of suitable age and discretion at the residence (or place of business) and then mail copies to the tenant by both regular and certified mail (next business day)
The person receiving must reside or be employed there and be likely to deliver the papers to the tenant.
“Nail and Mail” (Conspicuous Place Service): If no one is available to receive the papers in person after at least two diligent attempts at different times of day, the server may affix the papers to the tenant’s door or slip them under the door, and mail copies by regular and certified mail the next business day. This method should be a last resort, used only after multiple attempts to serve in person have failed.
After serving by one of the above methods, your process server will prepare an Affidavit of Service detailing how service was done (personal, substituted, or nail-and-mail, with dates and times, etc.). That affidavit must then be filed with the court within three days of the service to complete the record.
Pitfall to avoid: Improper service is a very common reason eviction cases get dismissed. Tenants have a right to contest service, and courts will throw out the case if the judge finds the papers weren’t served strictly as required. For example, if you serve the papers too late or too early (outside the 10–17 day window), or if the server didn’t also do the required mailing after a substituted/nail-and-mail service, your case could be dismissed and you’d have to start over. Always use a reliable process server who knows the RPAPL service rules, and double-check that the affidavit of service is filed. If you have any doubt about proper service, call (716) 218-8614 – our legal team can arrange service and ensure all procedures are correctly followed.
Step 4: Court Hearing and Obtaining a Judgment
On the date of the court hearing (the date given in your Notice of Petition), both you and the tenant will have the opportunity to appear in front of a judge. This court appearance is critical, as it determines whether you will get the judgment of eviction (legally allowing you to evict the tenant). Here’s what to expect and how to prepare:
Inside the courtroom, be prepared to present your case clearly and with proper documentation. If you have followed all the steps (served the right notices, filed and served the petition correctly), the court hearing is your chance to obtain a judgment of possession against the tenant, which is required before any eviction can occur. It’s wise to have legal representation or at least consult an attorney before the hearing to avoid mistakes – call (716) 218-8614 if you need experienced help advocating your case.
Possible Outcomes at First Appearance: When you show up to court, a few things can happen. If the tenant fails to appear (and you have proof they were properly served), you can request a default judgment. If you have all your paperwork in order, the judge may grant you a judgment of possession by default. If the tenant does appear, they may ask the court for an adjournment (a postponement). By New York law, residential tenants are entitled to at least a 14-day adjournment upon request to prepare or to get a lawyer. The judge will typically grant this as a matter of right if the tenant hasn’t had an adjournment yet. This means you might get a new court date a couple of weeks out. While this can be frustrating, it’s part of the process – be prepared for a possible short delay.
Settlement vs. Trial: In many cases, landlords and tenants are able to settle the case on the court date. For example, you might agree to give the tenant extra time to move out or set up a payment plan for rent, and in return the tenant agrees to vacate by a certain date (often documented in a stipulation of settlement). Settlements can save time, but be cautious – get any agreement in writing and have it “so-ordered” by the judge to be enforceable. If no agreement is reached, the case will proceed to a trial (usually a bench trial before the judge, as jury trials in eviction cases are rare in upstate courts). At trial, you as the landlord (or your attorney) will present evidence and possibly witness testimony to prove your case for eviction. Bring all relevant evidence: the lease or rental agreement, the original notice you served (and proof of service), rent ledgers or bounced checks (for nonpayment cases), photographs or incident logs (for misconduct cases), etc. You may testify, and you can bring witnesses (for instance, a superintendent who served a notice or neighbors who can attest to a nuisance). The tenant will have a chance to present any defenses (such as improper notice, bad conditions as a defense to rent, etc.).
Judgment of Possession: If you win the case – whether by default, settlement, or after a trial – the court will issue a judgment of possession in your favor. This judgment is what gives you the legal right to evict the tenant. In a nonpayment case, the judgment may also state the amount of rent arrears owed. However, remember that in New York, if a tenant in a nonpayment case pays all the rent due (plus any interest or costs as required) before the eviction actually occurs, the law allows them to stay and the eviction portion of the judgment will be canceled. (The rationale is that housing is favored – so if they pay, you get your money and they get to remain.) This is often called a “pay and stay.” As a landlord, be aware of this rule: a tenant can even deposit the full rent with the court on the eve of eviction and stop the eviction. If you believe the tenant is abusing this right in bad faith (for instance, a pattern of last-second payments), the law lets you ask the court for relief – but such situations are nuanced and you should seek legal advice.
If the Tenant Wins or Case Dismissed: If the tenant raises a valid defense and the judge finds, for example, that your termination notice was defective or not served properly, the case might be dismissed. Often, dismissals in eviction cases are “without prejudice,” meaning you can correct the issue and start again. It’s obviously better to get it right the first time. If the tenant actually prevails on the merits (e.g. proving landlord didn’t make necessary repairs so rent was lawfully withheld), the case could be dismissed on the merits or even result in a judgment for the tenant. This is uncommon in straightforward cases, but be prepared to address any allegations the tenant makes.
Attending landlord-tenant court can be intimidating, and small mistakes can be costly. If you’re unsure about representing yourself, consider hiring an eviction attorney. A seasoned lawyer can often navigate procedural hurdles and negotiate on your behalf to avoid adjournments or unnecessary delays. Call (716) 218-8614 to speak with an experienced upstate New York landlord-tenant attorney and make sure you secure the judgment you need to regain your property.
Step 5: Obtain the Warrant of Eviction
Winning a judgment is a crucial victory – but you do not yet have the right to remove the tenant until you take the next step. After the judgment of possession is granted by the court, the landlord must obtain a Warrant of Eviction (sometimes called a warrant of removal). The warrant is a legal document, signed by a judge or court clerk, directing the sheriff (or marshal/constable) to physically evict the tenant and put the landlord back in possession.
In many courts, you will need to prepare the warrant and present it to the clerk or judge for signature. In some upstate courts, the clerk’s office or judge will have a warrant form available, or there may be a DIY form online. The warrant will name the parties, refer to the judgment of possession, and command the law enforcement officer to execute the warrant (i.e. evict the tenant) after a certain date. It is usually returned to the landlord (or their attorney) to arrange service. Check with the court how their process works – in Buffalo City Court and many town courts, for example, the clerk gives you the signed warrant and then you must deliver it to the Sheriff’s Office for enforcement.
Once you have the signed warrant in hand, you must deliver it to the appropriate enforcement agency. In upstate NY, evictions are typically carried out by the County Sheriff’s Civil Division or sometimes by a city marshal or constable (if your city has those). The warrant of eviction authorizes them to remove the tenant, but you’ll need to pay their required fee and schedule the eviction. Contact the Sheriff’s Civil Department for your county to arrange this – they will often require pre-payment of a service fee and will explain their scheduling procedures. Tip: Act promptly – a warrant in New York is generally valid for 90 days from issuance, and while it’s rare to approach that limit, you don’t want to delay unnecessarily.
14-Day Notice of Eviction: New York law now requires that tenants be given a final 14-day notice before the actual eviction is carried out. When the sheriff or marshal receives the warrant, they will serve the tenant with a Notice of Eviction (sometimes called a 14-day notice). This notice informs the tenant that the warrant has been issued and they have 14 days to vacate voluntarily, or they will be evicted. Even in upstate counties, the 14-day notice is mandatory – the officer cannot evict sooner than 14 days after serving this notice. Practically, the sheriff’s deputy will either personally deliver or post this notice on the tenant’s door, and it will state the earliest date on or after which an eviction will occur. The tenant is not given an exact time/day in the notice, but it warns them that any time after the 14th day, the eviction can be executed.
Pitfall: Do not attempt to use the warrant on your own. Only a sheriff, marshal, or other law enforcement officer can lawfully execute the warrant of eviction. As eager as you may be to get the property back, you must let the officials handle the actual removal. If you try to remove the tenant yourself or shut off utilities during this period, you would be committing an illegal eviction despite having a judgment – the proper process must be followed to the end. Also, be prepared for the tenant to potentially make last-minute legal moves: up until the eviction date, a tenant can ask the court for relief (for example, an Order to Show Cause to stay the eviction). If such an order is served on you, it will temporarily stop the eviction and you’ll have to go back to court for a hearing. While not common, this is more likely if the tenant has a compelling hardship or a dispute about payment. Having legal counsel at the ready can help you navigate any last-minute complications – call (716) 218-8614 if you receive any court papers attempting to delay the eviction.
Step 6: Sheriff Enforces the Eviction (Tenant Removal)
The final step is the physical eviction, carried out by the sheriff or other authorized officer pursuant to the warrant. After the 14-day notice of eviction period expires, the sheriff will schedule a date to come to the property, remove the tenant, and restore possession to you as the landlord. In upstate New York, evictions must occur on business days during daylight hours (no nighttime or weekend evictions). The exact scheduling often depends on the sheriff’s workload – they might inform you of the set date, or you may need to call to confirm when it will take place once the 14 days have passed.
On eviction day, it’s important for the landlord or the landlord’s agent to be present. The officers will remove the tenant and anyone else in the rental unit, and will typically require the landlord to immediately take possession (change the locks, etc.). If the tenant has belongings left inside, procedures can vary by county: commonly, the tenant’s property is set out to the curb or sidewalk. Unlike NYC (which has specific rules for storage), most upstate jurisdictions do not require the landlord to store belongings – the tenant is expected to take their things during the 14-day notice period. However, use good judgment and check local regulations: some counties may consider it unlawful to immediately dispose of tenant belongings. It’s wise to give the tenant an opportunity to claim possessions or to store them for a short, reasonable period if contact is feasible. Always avoid confrontation – let the sheriff handle communicating with any occupants during the eviction.
Once the sheriff has completed the eviction, change the locks immediately. This prevents the tenant from re-entering. You have now legally regained possession of your property. Inspect the unit and document its condition (photos or video), especially if you plan to claim against the tenant’s security deposit for damages beyond normal wear and tear. If the tenant left behind a mess or damage, you may use the security deposit in accordance with New York’s security deposit law (remember to provide an itemized statement of deductions within 14 days of tenant vacating, as required by law since 2019). If the tenant or others attempt to break back in or occupy the property again after eviction, call the police – you have the right to exclude them at this point.
Common Pitfalls Landlords Should Avoid
Even a small mistake in an eviction can be costly. Here are some common pitfalls for upstate NY landlords to avoid:
Skipping the Notice or Using the Wrong Notice: Never skip the initial termination notice or rent demand. If you fail to give the tenant proper notice (e.g. not giving a 90-day notice when required, or no 14-day rent demand in a nonpayment case), the court will dismiss your eviction. Use the correct notice form and timeframe for the situation, and always wait out the notice period before filing in court.
Self-Help Eviction Attempts: Taking matters into your own hands is illegal in New York. Actions like changing locks, shutting off heat/electric, removing the tenant’s belongings, or using threats to force a tenant out are prohibited Class A misdemeanors. The tenant can sue for triple damages and you could face criminal charges. No matter how justified you feel, always go through the court process and use a sheriff for removal.
Improper Service of Court Papers: As emphasized, if the tenant isn’t served exactly according to the law, they can get the case thrown out. Don’t have a buddy just “drop off” the papers without following the required methods. Use a process server or someone knowledgeable, and ensure the 10-17 day rule and mailing requirements are met. File the affidavit of service on time. This is a technical area where many non-lawyers slip up.
Incomplete or Incorrect Paperwork: Mistakes in your petition (such as omitting required information or not attaching a copy of the notice you served) can give the tenant grounds to delay or dismiss. Double-check everything filed. It often helps to consult an attorney or use the court’s DIY forms to ensure all blanks are filled. Small omissions can be big issues in front of a judge.
Accepting Rent During the Eviction Process: Be careful about accepting any rent payment after you’ve started an eviction. Accepting rent can sometimes reinstate a tenancy or nullify a termination notice. For example, if you take a partial payment after filing a nonpayment eviction, the tenant may argue the notice is no longer valid. At the very least, do not accept any money without clear agreement on how it will affect the case. It’s best to consult your attorney before taking money from the tenant during an eviction proceeding.
Not Being Prepared for Court: Landlords who show up to court unprepared – lacking documentation, not knowing what to say, or missing key evidence – may lose even a seemingly straightforward case. Organize your rent records, bring copies of notices and leases, and familiarize yourself with the facts and timeline. If the tenant raised complaints (e.g. about conditions), be ready to address them. The judge will expect you to prove your case; being unorganized could lead to an adjournment or worse, a dismissal.
Ignoring Local Laws: While this guide covers New York State law, always be mindful of any local ordinances or regulations. Some upstate cities (like Albany, for instance) have tried to implement “good cause” eviction laws or require rental properties to be registered to pursue evictions. Make sure you’re in compliance with any local requirement (for example, if a city requires a rental registry license, have that up to date before filing). These local rules can be nuanced, so consult an attorney if unsure.
By avoiding these pitfalls, you greatly increase your chances of a smooth and swift eviction process.
Legal Eviction Done Right
Evicting a tenant in upstate New York is a multi-step legal process – but by following this step-by-step guide, a small or mid-size landlord can navigate it with confidence. The key takeaways are: always start with the proper notice, be meticulous with court procedures and deadlines, and let the sheriff handle the physical eviction. New York’s laws give tenants many protections like specific notice periods and the right to a court hearing, so landlords must be just as diligent in exercising their rights the correct way. The benefit of doing it “by the book” is that you will ultimately regain possession of your property lawfully, and you’ll avoid costly delays or legal repercussions.
We understand that every situation has its quirks – maybe your tenant is engaging in illegal activity, or perhaps you haven’t been paid in months and are at wit’s end. Don’t let frustration lead to a misstep. Our legal team is here to help upstate New York landlords efficiently and effectively reclaim their rentals within the bounds of the law. From preparing rock-solid notices to representing you in court, we can handle the heavy lifting and help you avoid mistakes. Call (716) 218-8614 now for a personalized legal consultation and take the guesswork out of the eviction process.
Don’t risk a thrown-out case or legal trouble by going it alone – call (716) 218-8614 today. Our experienced landlord-tenant attorneys will guide you through every step to ensure your eviction is done right, done quickly, and done legally. Your rental property is a valuable investment; with the right help, you’ll be able to protect it and move forward with quality tenants.
DISCLAIMER: DO NOT RELY. This blog entry was generated by AI and is intended for entertainment purposes only. Do not rely on any information provided. The content may contain legal inaccuracies, and laws vary by jurisdiction and circumstance. Every case is unique—consult a qualified attorney for legal advice tailored to your situation.