Before you bring an eviction action to remove a tenant for non-payment of rent in the Town of Smithtown, 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 must fall on a Tuesday and must be at least 17 days in the future.

The original notice of petition and non-payment petition, and one complete copy of those papers, must then be brought to the Fourth District Court of Suffolk County, located in Building C158, North County Complex, Veterans Memorial Highway, in Hauppauge, and must be filed with the Clerk of the Court. The fee for this is $45.00, and it 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 the Fourth District Court on the date the action is to be heard, before Honorable C. Stephen Hackeling, District Court Judge. 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 Judge Hackeling 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, Judge Hackeling will hold a hearing (a trial) on the matter, often the same day, 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 two weeks and may be marked “final” against the party requesting the adjournment.

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 the Town of Smithtown, 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.

James D. Murtha, Esq.

Author 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.

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