A. Introduction to Summary Proceedings Introduction to Summary Proceedings

• Jurisdiction: New York

A. Introduction to Summary Proceedings

1. Overview

Summary proceedings are the primary vehicle by which an owner of real property in New York may seek possession of leased premises from a tenant or other occupant. The New York State Legislature first enacted summary proceedings in 1820⁷⁵³ to remedy the unduly burdensome procedural devices that made the common-law remedy of ejectment "an expensive and dilatory proceeding which, in many instances, amounted to a denial of justice."⁷⁵⁴ The goal of modern summary proceedings has not changed since the 1820 statute was enacted. That goal was, and remains, to provide a "simple, expeditious and inexpensive means of regaining possession of premises"⁷⁵⁵ while providing necessary and appropriate defenses to protect occupants' rights. Even when a tenant has no defense, the court may exercise its inherent discretion to slow down a proceeding that is going forward with "undue rapidity."⁷⁵⁶ This objective was achieved by statutorily circumscribing the procedural rights and remedies that might otherwise be available to the parties. ⁷⁵⁷ The time frames of these proceedings can vary widely across the 62 counties of New York State.

A tenant's time to answer or move for relief in a summary proceeding is truncated, disclosure and third-party practice is permitted only by leave of court, and schedules for trials and hearings are accelerated. The statutory authority governing summary proceedings is found in RPAPL Article 7 and CPLR Article 4.

Two basic and competing schools of thought are reflected in the case law addressing jurisdictional disputes arising in RPAPL Article 7 summary proceedings. The first, premised on the notion that a summary proceeding is a creature of statute and in derogation of the common law, applies the rule that a petitioner's failure strictly to comply with the statutes governing summary proceedings deprives the court of subject-matter jurisdiction.⁷⁵⁸ While in times past parties would litigate over whether the rubber stamp bearing the court clerk's signature was properly affixed to the notice of petition,⁷⁵⁹ the modern trend subscribes to the view that "[a] petition in a summary proceeding is no different than a pleading in any other type of civil case"⁷⁶⁰ and adopts a more forgiving approach in assessing pleading "infirmities" or "irregularities."⁷⁶¹ Under this now well-entrenched view, the appropriate test regarding the adequacy of notice "is one of reasonableness in view of the attendant circumstances,"⁷⁶² and judicial engraftment of "hypertechnical restrictions" ⁷⁶³ and "gotcha litigation tactics"⁷⁶⁴ are disfavored.

The type of summary eviction proceeding that may be appropriate in a given situation will depend on whether an occupant qualifies as a tenant under New York law and the grounds on which eviction is sought. Section 711 of the RPAPL defines a tenant as anyone in possession of residential property for 30 days or more (including single-room occupants)⁷⁶⁵ and provides that an occupant "shall not be removed from possession except in a special proceeding." This includes tenants for a special use where that use has ended. ⁷⁶⁶

Although the prohibition against removal by self-help is found in RPAPL 711, the prohibition applies whether the ground for the proceeding is found in 711, 713, or 715. A warrant of eviction issued by a court of competent jurisdiction is required to remove any residential occupant of real property pursuant to a lease or who has been in possession for over 30 days, regardless of whether there is a landlord-tenant relationship.⁷⁶⁷ This rule prohibiting self-help is absolute in the case of residential tenants or occupants.⁷⁶⁸ Self-help is also prohibited in the commercial context, with the exception of a limited common-law right to self-help that can be exercised only where it is expressly authorized by the lease, or in the case of a licensee,⁷⁶⁹ and it can be effectuated without force or violence.⁷⁷⁰ An occupant who is unlawfully evicted may seek to be restored to possession in a summary proceeding, called an illegal lockout proceeding, brought under RPAPL 713(10) or in a plenary action to recover treble damages, costs, and attorney fees for unlawful eviction under RPAPL 853. The fact that a court finds cause to restore a tenant to occupancy does not necessarily mean that the eviction was unlawful.⁷⁷¹

The New York City Administrative Code has further confined its definition of "tenant" to someone "who has lawfully occupied the dwelling unit for thirty consecutive days or longer."⁷⁷² By application of the principle that "a thief, or the successor of a thief . . . could not convey good title [or possession] to a subsequent purchaser for value,"⁷⁷³ appellate courts have held that squatters⁷⁷⁴ are not permitted to claim tenancy rights on the basis of their illegal act of squatting.

Some courts have found that giving squatters possessory rights "would result in an encroachment upon the landlord's property rights as would challenge the protection of such rights guaranteed by the Constitution."⁷⁷⁵ Under this approach, there is no need to petition the court for relief: the common law allows an owner to regain possession in a peaceable and lawful manner and lawfully to resist any attempt to re-enter. ⁷⁷⁶

A building owner's delay in exercising self-help may be viewed as a concession of the squatter's right of possession and may support a finding that the occupancy has ripened into a tenancy at sufferance. Under this approach, self-help would be unavailable to an owner who tarries in removing a squatter, with the owner relegated to commencing an action for ejectment or a summary proceeding. ⁷⁷⁷

From 1820, when the first summary proceeding statute was enacted in New York, until 1924, a petitioner could only recover possession in a summary proceeding. Rent could be recovered only in a separate, plenary action, even if the summary proceeding was based on a default in the payment of rent. To end this needless duplication, the summary proceeding statute was amended to allow the court "to determine the amount of rent due to the petitioner and give judgment for the amount found to be due." ⁷⁷⁸

In Byrne v. Padden, the Court of Appeals interpreted this language to mean that, notwithstanding the limitations on the inferior courts' monetary jurisdiction, these courts could, in summary proceedings, award rent due without regard to amount because the "power to fix the rent due is an incidental matter." ⁷⁷⁹

2. The Basic Structure of Modern Summary Proceedings

a. Pleadings

A summary proceeding is a special proceeding for eviction brought under RPAPL Article 7. Much like a motion in a plenary action, the commencement of a summary proceeding by the filing of a petition (or, in the case of a nonpayment proceeding in New York City, the additional filing of an answer) causes the matter to be placed on the court's calendar. In contrast to plenary actions, in which a request for judicial intervention must be filed before a case is placed on the court's calendar, with the exception of a New York City nonpayment proceeding (which is placed on the calendar when an answer is filed), a summary proceeding is placed on the calendar when it is commenced. The court has the power to hold a trial any time the proceeding is on the calendar although, as an administrative matter, cases are transferred to separate parts for trial. In practice, however, adjournments are commonplace upon an initial court appearance, especially if a pro se tenant states a need for an attorney. Summary proceedings also dispense with many other procedural aspects typically associated with plenary actions, such as discovery conferences, separate trial calendars, and notes of issue or notices of trial putting a case onto a trial calendar. Every summary proceedings calendar is the equivalent of a trial calendar for CPLR purposes and, so long as a motion in the context of a summary proceeding is made returnable on a day the proceeding is otherwise calendared to be heard, some courts have held that the motion is timely without the restrictions of CPLR 2214.⁷⁸⁰ Other courts, however, may deny the motion as untimely depending on the circumstances and the reason for the "short service."

Article 7 of the RPAPL sets forth the basic guidelines for the maintenance of a summary proceeding. The person or entity commencing a summary, or "special," proceeding is the "petitioner" (the equivalent of a plaintiff in a conventional action). The party against whom the initiating pleading, denominated a "petition," is filed is the "respondent" (the equivalent of a defendant in a conventional action).⁷⁸¹ The documents summoning the respondent to court are the notice of petition,⁷⁸² which, with the exception of nonpayment proceedings in New York City, must contain the time and place of the hearing of the petition and is jurisdictionally...