Tenant Defenses to Evictions in New York

If you're a renter getting evicted in New York, you need to learn if you have legal grounds to fight your eviction. Here's how.

In New York, a tenant can be evicted for not paying rent or for violating the lease or rental agreement. A tenant may have a defense available to challenge an eviction for one of these reasons.

Eviction laws vary depending on whether the rental property is located within New York City or outside the city, and whether the property is covered by some kind of state or local rent regulation. This article provides general information for evictions within the state of New York. For further information or questions, see the resources below.

Grounds for Eviction in New York

A tenant can be evicted in New York for several different reasons, the most common of which are failing to pay rent or violating the lease. In order to legally evict a tenant, a landlord must get a judgment from the court allowing the eviction to occur. Before the landlord can file the eviction lawsuit with the court, the landlord must give the tenant notice.

Eviction for Nonpayment of Rent

Before a landlord can evict a tenant for failing to pay rent, the landlord must give the tenant a three-day notice, or demand for rent. The notice must state that the tenant has three days to pay rent or move out of the rental unit. If the tenant does not pay the rent or move out of the rental unit within the three days, the landlord can begin eviction proceedings against the tenant (see  N.Y. Real Prop. Acts § 711(2)).

Eviction for Lease Violations

If the tenant violates the lease, the landlord must give the tenant a ten-day notice that allows the tenant to fix the violation. If the tenant fixes the violation within the ten-day period, the landlord must not file the eviction lawsuit. If the tenant does not fix the violation within the ten-day period, the landlord must then give the tenant a notice of termination. The notice of termination must state that the tenant has at least 30 days to move out of the rental unit. If the tenant has not moved out of the rental unit by the end of the 30 days, the landlord can then file an eviction lawsuit with the court. See the New York Courts  self-help center for holdover notices  for more information about lease violations outside of New York City. For information on lease violations within New York City, see the book  New York City Landlords and Owners, page 8, published by the New York City housing court.

Examples of lease violations include having a pet when none are allowed or having a washing machine when expressly prohibited by the lease.

Eviction Process

To begin eviction proceedings, the landlord must file a petition with either the district court or housing court of the county in which the rental property is located. The court will assign a time and date for a hearing before a judge and will notify the tenant. If the tenant wishes to challenge the eviction, the tenant must attend the hearing. At the hearing the judge will listen to both the landlord and the tenant and will make a final decision regarding the eviction.

The tenant may find that challenging the eviction is not always the best option. The tenant might have to pay the landlord’s court and attorney’s fees if unsuccessful in court. The tenant could also receive a negative credit rating and could be turned down for future housing. The best option for the tenant might be to try to talk to the landlord and negotiate a deal outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website  mediate.com  and the  American Arbitration Association. The  mediation faqs  on the Nolo site provide more information on the subject.

Eviction Defenses in New York

A tenant may have a defense available if being evicted because the tenant failed to pay rent or violated the lease.

Landlord Evicts Tenant with "Self-Help" Actions

It is illegal in New York for a landlord to evict a tenant through any means other than obtaining a court order from a judge. A landlord cannot turn off the utilities to the rental unit or change the locks on the doors or do anything that would interfere with the tenant’s access to the property or use of the property. This type of behavior is often referred to as a “self-help” eviction. If a landlord attempts to evict a tenant with a “self-help” eviction, the tenant could sue the landlord for damages (see  N.Y. Real Prop. Law § § 235  and  853). The Nolo article  Illegal Eviction Procedures in New York  has more information on the subject.

Landlord Does Not Follow Proper Eviction Procedures

When evicting a tenant, it is very important that a landlord carefully follows all the procedures set forth in New York law. Otherwise, the eviction may not be valid. For example, a landlord must give the tenant a three-day notice before evicting a tenant for failing to pay rent. If the landlord does not give the tenant any notice but files the eviction lawsuit anyway, the tenant can use lack of notice as a defense to the eviction. The eviction lawsuit would stop, and the landlord would be required to give the tenant a three-day notice. If the tenant still does not pay rent, the landlord can file a new eviction lawsuit with the court.

Keep in mind that this type of defense does not completely stop a justified eviction; it simply delays it. As soon as the landlord fixes the deficient procedure, the eviction will proceed as normal.

Landlord Evicts Tenant for Not Paying Rent

A tenant who is being evicted for failing to pay rent may have a defense available.

Tenant Paid Rent in Full

After a tenant fails to pay rent on time, a landlord is required to give the tenant a three-day notice that states that the landlord will begin an eviction lawsuit unless tenant pays rent or moves out of the rental unit within three days. If the tenant pays rent during the three-day time period, the landlord should not proceed with the eviction (see  N.Y. Real Prop. Acts § 711(2)). The tenant should ask for a time-stamped receipt when paying rent. This way, if the landlord proceeds with the eviction anyway, the tenant can use the receipt as proof that the rent was paid during the appropriate time period.

Landlord Did Not Maintain the Rental Unit

In New York, a landlord is required to maintain a rental unit in a fit and habitable condition. This means the landlord must supply the rental unit with the necessary utilities, including running water and heat, and then make any necessary repairs as needed (see  N.Y. Real Prop. Law § § 235  and  235-b).

If the landlord fails to make necessary repairs or supply necessary services to the rental unit, the tenant may have a few options:

  1. The tenant may be able to withhold rent until the landlord makes the necessary repairs. The tenant should notify the landlord in writing of the repairs that are needed and give the landlord a reasonable amount of time to make the repairs. If the landlord does not make the repairs, the tenant can withhold rent until the repairs are made (see  Semans Family Ltd. Partnership v. Kennedy, 675 N.Y.S.2d 489 (N.Y. City Civ. Ct., 1998)).
  2. The tenant may choose instead to make the necessary repairs and then deduct the cost of the repairs from the rent. Again, the tenant should notify the landlord in writing of the repairs that are needed and give the landlord a reasonable amount of time to make the repairs. If the tenant chooses to make the repairs and then deduct the cost of the repairs from the rent, the tenant should keep a copy of all receipts and invoices and provide the landlord with copies of the same (see  Jangla Realty Co. v. Gravagna 447 N.Y.S.2d 338 (Civ. Ct., Queens County, 1981)).

If the tenant chooses either of these options, the tenant should probably also talk to a lawyer to ensure that the tenant is following best practices.

If the landlord tries to evict the tenant after the tenant exercises one of these options, the tenant can defend against the lawsuit by showing that the landlord did not maintain the rental unit according to the law. For more information on this subject, see the article  New York Tenant Rights to Withhold Rent or “Repair and Deduct,”published by Nolo.

Landlord Evicts Tenant for Violating the Lease Agreement

A landlord must give the tenant a ten-day notice to cure before beginning an eviction lawsuit because of a lease violation. If the tenant fixes the lease violation within ten days, the landlord must not proceed with the eviction. If the landlord proceeds with the eviction anyway, the tenant can use proof that the violation was fixed within the appropriate time frame as a defense against the eviction.

Landlord Evicts the Tenant Based on Discrimination

The federal  Fair Housing Act  makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. The  New York State Human Rights Law  also makes it illegal for a landlord to discriminate against a tenant based on creed, age, sexual orientation, marital status, or military status. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense to the eviction. See the Nolo article  Housing Discrimination Prohibited by State and Local Law  for more on laws prohibiting discrimination against tenants.

Additional Resources for Tenants in New York

It is important to note that the landlord-tenant laws vary within the state of New York depending on whether or not you live within New York City and whether your property is covered by some form of rent regulation. For a comprehensive online resource on tenant rights in New York, see  TenantNet. Useful information is also available on the  New York State Homes and Community Renewal  website. Legal aid organizations throughout the state, such as  The Legal Aid Society, can provide free or low-cost legal representation to those who qualify based on income. The Legal Aid Society also has an online  self-help center  with housing-related questions and answers. The New York Attorney General’s office has also published a book with information on tenants’ rights,  available online. Tenants who live in federally assisted housing should also check out the  tenant resource page  at HUD.gov.

Finding Your Local Courthouse

Eviction cases are typically filed in the district court or housing court of the county in which the rental property is located. To find your local courthouse, visit the New York Courts’  online court locator. The New York Courts also have an  online self-help center  with information related to evictions both inside and outside New York City.

If you live within Bronx, Brooklyn, Manhattan, Queens, or Staten Island, your local housing court has published a  helpful booklet  with information related to landlord-tenant relationships and the housing court.

When to Hire an Experienced Lawyer

If you have more specific legal questions about your eviction case or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article  How to Find an Excellent Lawyer.

Also check out  Nolo’s Lawyer Directory  for  New York lawyers who specialize in landlord-tenant law.

More Information on Evictions and Terminations

For more articles on the subject, see the  Evictions and Terminations  section of Nolo.com.

For more information on tenant rights, see  Every Tenant’s Legal Guide, by Janet Portman and Marcia Stewart (Nolo).

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