N. Enforcing Warrants of Eviction and Orders of Possession Enforcing Warrants of Eviction and Orders of Possession

• Jurisdiction: New York

N. Enforcing Warrants of Eviction and Orders of Possession

Once a warrant of eviction has issued, it must be delivered to an enforcement officer, along with the appropriate fees. The sheriff or marshal must issue a final notice at least 72 hours before removal.¹⁸⁷⁹ The New York City Marshal's Handbook requires New York City marshals to serve notice at least six business days before the warrant may be executed.¹⁸⁸⁰ Outside New York City, a sheriff or marshal executing on a warrant (or order of possession in an ejectment action or a Supreme Court writ of assistance) will remove "all occupants," including named parties, spouses, children, servants, boarders, and guests, whether named in the order or not, although some sheriffs and marshals refuse to execute on a warrant or order against an unnamed occupant.¹⁸⁸¹ A marshal's failure properly to serve a 72-hour notice does not afford the tenant a basis to be restored to possession¹⁸⁸² unless the tenant shows that but for the marshal's misconduct the tenant would have cured the default. ¹⁸⁸³

In the New York City Civil Court, a request for a warrant based on a default must contain for verification an affidavit of facts from a party to the proceeding.¹⁸⁸⁴ A verified petition will not support a default judgment unless the attorney has alleged personal knowledge, and a judgment will grant possession only if service sufficient to support a money judgment has been alleged. ¹⁸⁸⁵

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Notes:

^[1879] RPAPL 749(2).

^[1880] New York City Marshals Handbook, ch. 5-1. New York City marshals may still use the 72-hour form when requested and where all occupants are personally served. Summary Proceedings: Evictions and Legal Possessions chapter of the New York City Marshal's Handbook, http://www.nyc.gov/html/doi/html/marshals/mar4.html.

^[1881] Croft v. King, 8 Daly 265, 268 (N.Y. Ct. Comm. Pleas 1879).

^[1882] 100 Queens Blvd. Assocs. v. G&C Coffee Shop, 15 Misc. 3d 141(A), 841 N.Y.S.2d 821 (App. Term, 2d Dep't 2007); Graham v. Moore, 10 Misc. 3d 133(A), 814 N.Y.S.2d 561 (App. Term, 2d Dep't 2005).

^[1883] Elide Props., LLC v. Analisa Salon, Ltd., N.Y.L.J. July 1, 2005, p. 25, col. 5 (App. Term, 2d Dep't).

^[1884] CPLR 3215; see also Civil Court Directive DRP-154 at http://www.courts.state.ny.us/COURTS/nyc/SSI/directives/DRP/drp154.pdf.

^[1885] Avgush v. Berrahu, 17 Misc. 3d 85, 89–90, 847 N.Y.S.2d 343 (App. Term, 2d Dep't 2007) ("[A] money judgment should be available in a summary proceeding where jurisdiction had been obtained...