James D. Murtha, Esq.

About James D. Murtha, Esq.

I am a Managing Member at the Murtha Law Firm, LLC, and I am an eviction lawyer in Suffolk County and Nassau County, Long Island, New York. You can call me, right now at (631) 747-0356, and I'll be happy to speak with you for free about the New York eviction process.

August 11, 2019 By James D. Murtha, Esq. Leave a Comment

Non-Payment Eviction Proceedings in Nassau County

Before you bring an eviction action to remove a tenant for non-payment of rent in Nassau County, there are certain things you must know. First, you must be properly situated to bring the action. That means, generally, that you must be the owner of the property, and the person you are seeking to evict must be a tenant in possession of the property. And if the property is a one-family house, there must be no more than two units.

Next, you need to know what type of tenancy you are dealing with. Is it a tenancy pursuant to a written term lease agreement, or is the agreement oral in nature, such as a tenancy at will or by sufferance, or is it month-to-month, because a written lease agreement has expired? If there is a written agreement, you need to make sure that all notice requirements under the agreement have been satisfied before starting the action.

After waiting until the rent is at least 5 days past due, you must have sent a notice to the tenant by certified mail informing the tenant that you have failed to receive the rent within five days of its due date. After that you must arrange to have a 14-day notice served on the tenant before bringing a non-payment proceeding. The 14-day notice essentially demands that the tenant pay all of the back rent in full within 14 days, or move out. It lets the tenant know that if he does neither, you will evict him. Once that is done, you must prepare a notice of petition and non-payment petition. You must choose a date for the petition to be heard in court and that date should not fall on a Friday and must be at least 17 days in the future; and you must call the landlord-tenant unit of the Civil Clerk’s Office to reserve the date.

Once you have confirmed the date, the original notice of petition and non-payment petition, and one complete copy of those papers, must then be brought to the Civil Clerk of the District Court of Nassau County, located on the second floor of the courthouse at 99 Main Street, in Hempstead, and must be filed with the Clerk. The fee for this is $45.00, and is called an “index fee.” The Clerk will return your copy of the papers to you, time stamped, with a receipt for your payment of the index fee.

You must then arrange to have someone over the age of 18 years who lives in the State of New York, who is not a party to the action, serve the papers on the tenant at the house. The papers must be served no more than 17 days before the date the petition is to be heard, but no less than 10 days before that date. Then an affidavit of service must be prepared by the person who served the papers and must be filed with the Clerk of the Court within the time required by law.

Finally, you must appear in whichever of the two Landlord-Tenant Parts of the Nassau County District Court your case is calendared in, on the date the action is to be heard, before either Honorable Scott Fairgrieve, District Court Judge, in Landlord-Tenant Part 1, or Honorable James M. Darcy, District Court Judge, in Landlord-Tenant Part 2. If the tenant does not appear, you can request a default judgment for all the relief you are seeking in your petition, provided it was served properly and there are no defects in it. You cannot recover attorneys’ fees, however, even if you have a valid provision for it in a written agreement, if the tenant does not show up to court.

If both parties are present, then your Judge will require you to step out of the courtroom and discuss the matter among yourselves to see if it can be settled. If it can, and you come to a settlement agreement with the tenant, then you must put it in writing using the stipulation of settlement forms available in the courtroom for that purpose.

If the matter cannot be settled after conferencing with your Judge, the Judge will schedule a hearing (a trial) on the matter, usually within a few weeks, if both parties are ready. If either party requests an adjournment, it will likely be granted, but unless both parties consent to the adjournment, it will be for either two weeks, or until the Court’s next available date, whichever occurs last in time.

At the hearing, you must state your case to the Court. As the petitioner, you will get to go first. If you do not state all of the facts necessary to your case, your petition will be dismissed, and you will have to start again. Next it will be the tenant’s turn to present his or her defenses. If the tenant has legal defenses, your case may be dismissed. But if you state your case adequately, and the tenant has no legal defenses, then you can expect to win a monetary judgment for the back rent; a judgment of possession; and a warrant of eviction for the Sheriff to remove the tenant.

This is a very barebones outline of the non-payment process in Nassau County, and is not intended as anything other than a brief overview. Because of the complexities of landlord-tenant law and proceedings, you should always be represented by an attorney specializing in landlord-tenant law. The Murtha Law Firm, LLC, is ready to represent you. When you retain us, we take care of everything described above and more. All you need to do is appear with us in Court. Call us today for a free consultation to get started.

January 30, 2019 By James D. Murtha, Esq. Leave a Comment

Why You Need an Eviction Lawyer to Evict a Tenant

Most landlords will face the unpleasant prospect of having to evict a tenant at some point for one reason or another. The reasons for the eviction are of course important, but not nearly as important as taking the correct legal steps to remove the tenant. The process can be daunting and time consuming.

Never Try it on Your Own

The temptation to attempt to handle an eviction on your own is great–the Internet is full of “advice,” free downloadable forms for you to send your tenant, and lots of general information. Most of it is just wrong. Before you start printing free forms, be reminded of one thing–you get what you pay for. In the Nassau and Suffolk County courts, those forms usually have no legal value, and may only serve to keep the tenant in your property even longer.

You can also go to the Court System’s website and download the forms you need to begin an eviction proceeding, but landlord-tenant law is so highly technical that even having the correct forms is not enough. You need to understand the law and the procedure involved. Without that understanding, even the correct forms may be useless. And the staff at the courthouses in Nassau and Suffolk County are prohibited from giving you legal advice, so you really will be on your own and overwhelmed.

There are many aspects of landlord-tenant law in New York, and the courts recommend that you retain an eviction lawyer to remove a tenant. Understanding the law, your rights and responsibilities, as well as the tenant’s rights and responsibilities, is the key to an expedient and effective eviction.

How the Eviction Process Works

Before your eviction lawyer can start proceedings against a tenant, he or she will need a copy of your written lease agreement, if there is one. Many lease agreements contain predicate notice requirements that must be met before you can start legal action. An experienced eviction lawyer will read the lease to ensure that you have met all such notice requirements.

Many Nassau and Suffolk County landlords do not have written lease agreements with their tenants. If this is your situation, and your eviction is to be based on non-payment of rent, you still need to send a notice to the tenant letting him know that you have not received the rent within 5 days of its due date; and arrange to have a fourteen-day notice to pay or quit served on the tenant.

There are two kinds of eviction proceedings: non-payment, which is self-explanatory, and hold over, which is for persons who are tenants without an active written lease agreement for a term that has not expired, or persons who are not tenants, e.g., licensees, squatters, etc.

Non-Payment Eviction

If your tenant simply does not pay the agreed amount of rent, then you have the right to evict him or her. If the tenant pays all of the rental arrears and becomes current in the rent on or before the court date, the case will generally be dismissed and the tenant will remain in possession of the property. If you are willing to accept the potential for this outcome, then a non-payment proceeding may be right for you.

Hold-Over Eviction

Two things have to be in effect for a hold-over proceeding:

1. Non-payment of rent is NOT the primary grounds for a the eviction.
2. There is no written lease in effect for a term not yet expired.

In other words, if the term of your tenant’s written lease agreement has not yet expired, you generally cannot evict him or her unless the tenant stops paying rent. If your agreement is oral, however, then the tenancy is “at will” or “by sufferance,” You can terminate such a tenancy by giving the tenant 30-days written notice. Thereafter, you can start a hold-over eviction to remove the tenant.

Hold-over evictions traditionally take a little longer than non-payment evictions because of the requirements of the 30-day written notice.

Steps to an Eviction

There a several trips to the courthouse in an eviction proceeding and every case is different, but these are the basics.

Serve an appropriate predicate notice. This lets the tenant know that he or she must do something within a specified time period, or an eviction action will begin.

File and serve a Notice of Petition with Petition in the appropriate court.

Appear in court on the date the petition is noticed to be heard. (In other words, the court date).

On prevailing, file an application for the Court to issue you a judgment. If money has been awarded, also request a transcript of judgment (this costs $6) and a warrant of eviction for the Sheriff to come and physically remove the tenant.

Now that your tenant has been legally evicted from the property, you must ensure that he or she actually leaves. Getting them out sooner than later is in your best interest, as some evicted tenants do things to retaliate against their landlord. At this juncture you should ask the Nassau or Suffolk County Sheriff’s office to execute your Warrant of Eviction and remove the tenants. They will serve a 14-day notice to vacate, and after that period they will physically remove the tenants. If the tenant causes any damage above their security deposit, you may start additional legal proceedings to recover the amount of the damages.

Chances are good that you may not be repaid, i.e., that you may not recover the amount of your judgment, but a judgment will remain on the tenant’s credit report for up to 7 years and can be enforced for up to 20 years.

Why You Need an Eviction Lawyer

Evicting a tenant is time-consuming and takes precise attention to the New York landlord-tenant statutes, which is why you need an experienced attorney to represent you. At the Murtha Law Firm, LLC, we have many years of experience in working with landlords to resolve tenant issues. Our flat fee covers all the expenses you would incur if you tried to evict on your own, including filing fees, process server fees, and transcripts of judgment. We take care of all of that for you – and we will appear in court with you to make sure you get the relief you need. We will make sure you get everything you need to have the Sheriff’s Office remove the tenant.

Most landlords in Nassau and Suffolk County are homeowners who are renting an accessory apartment to a single individual or small family, and in some cases are not permitted to do so because of a town or other municipal code. If you are one of those landlords and are concerned that leasing part of your home without permission prohibits you from evicting a tenant, do not despair. Well settled appellate court decisions have held that tenants must pay rent, regardless of local laws requiring the landlord to obtain a permit to rent the unit; further decisions have held that landlords who rent one or even two units are not running afoul of the Multiple Dwelling Law and are not prohibited from collecting rent.

An experienced eviction attorney knows the laws, and how they are applied–an eviction attorney is well worth the investment when you need to get rid of a problem tenant. Call us for a free consultation today. We can begin the process of removing your tenant as soon as we are retained.

January 25, 2019 By James D. Murtha, Esq. Leave a Comment

Foreclosure Defense: What Homeowners Need to Know

Mounting a successful defense against a foreclosure action was quite rare in the past. However, after the foreclosure crisis that followed the national economic troubles that began in 2007, the number of successful defenses has increased substantially.

With numerous foreclosure cases finding their way into courtrooms, a lot of evidence demonstrating fraud and ineptitude in the mortgage servicing industry has been uncovered. This has prompted courts to begin to change their stance of leaning toward lenders in foreclosure proceedings to a more balanced approach that benefits homeowners.

However, even with this development, it is worth mentioning that not all foreclosure cases now end in favor of the homeowner. This is where the specialty of the foreclosure defense practice comes to the aid of homeowners.

Read on below to learn more about foreclosure defense.

What is Foreclosure Defense?

Foreclosure defense means a legal strategy employed by homeowners and their attorneys to forestall or bring to an end to the foreclosure process. Foreclosure defense attorneys often aim to prove that the foreclosing bank or lender does not have the legal right to foreclose on the property. To successfully do this, they must prove, among other things, that the actions of the lender are unlawful.

Where the defense is successful, the lender may be forced to renegotiate mortgage terms with the homeowner. This is known as a loan modification. In some circumstances, the lender may be forced to abandon the foreclosure process altogether.

Judicial and Non-Judicial Foreclosures

To mount a foreclosure defense in court, the defending borrowers must be able to bring their case before a judge. This occurs automatically in states where judicial foreclosures are mandated by the law. This means that the law requires all foreclosures to go through a court process before they are finalized. States requiring judicial foreclosures generally also require that the borrowing homeowner sign a mortgage note.

If you live in a state that practices non-judicial foreclosures, however, the lender does not have to go before a judge in court to initiate a foreclosure. Homeowners looking to have a judge decide their foreclosure case need to initiate a lawsuit in court alleging that the action is unlawful. Homeowners are also required to sign a deed of trust in states that practice non-judicial foreclosures.

Common Defenses to Foreclosure

Foreclosure attorneys use a variety of defenses to prove a homeowner’s claims in court. Some of the more common defenses are listed below.

Lender Lacks Standing

To initiate a foreclosure action, the foreclosing party must own the mortgage, or be acting on behalf of the owner. At the beginning of the foreclosure crisis, numerous attorneys successfully stopped foreclosures using what is called a “produce the note defense.” A promissory note is considered proof of ownership of the mortgage debt.

Lender’s Failure to Follow State Procedures

Each state has its own procedures governing the foreclosure process. Where it is proven that the lender failed to adhere to proper legal procedure, the court is legally mandated to ask them to start the process all over again. This is known is a dismissal without prejudice.

Other Serious Mistakes Committed by the Lender

It is normal for mortgage servicing companies to make mistakes when handling the accounts of borrowers. If mistakes such as imposing fees and charges not included in the mortgage agreement, crediting the wrong account, overstating the amount owed, etc., are discovered, they can be used to challenge the foreclosure in court.

There are many other defenses used by attorneys to support a foreclosure defense. The choice depends on the specifics of the case at hand.

Homeowners who want to challenge a foreclosure should hire a foreclosure defense attorney to increase the chances of obtaining a favorable outcome. An experienced attorney will be able to assess your claim and advise you on the way to proceed, including filing a lawsuit, negotiating for a modification with the lender or attempting to have the case dismissed or voluntarily discontinued.

November 27, 2017 By James D. Murtha, Esq. Leave a Comment

Hold-Over Eviction Proceedings in the Town of Babylon

Before you bring an eviction action to remove an occupant of real property for holding over in the Town of Babylon, there are certain things you must know. First, you must be properly situated to bring the action. That means, generally, that you must be the owner of the property, and the person you are seeking to evict must be in possession of the property. There must also be no written lease agreement in effect for a term that has not yet expired.

November 26, 2017 By James D. Murtha, Esq. 1 Comment

Non-Payment Eviction Proceedings in the Town of Brookhaven

Before you bring an eviction action to remove a tenant for non-payment of rent in the Town of Brookhaven, there are certain things you must know. First, you must be properly situated to bring the action. That means, generally, that you must be the owner of the property, and the person you are seeking to evict must be a tenant in possession of the property. And if the property is a one-family house, there must be no more than two units.