Key Takeaways:
- The length of notice your tenant needs to receive is determined by statutory law and the terms of your lease.
- Commercial and residential evictions on Long Island use the same procedure and the same District Courts; the differences are in the notices.
- In practice there are two grounds: nonpayment and holdover. Lease-violation and illegal-use cases exist on paper and are rarely the route taken.
- Read the lease first. Its default notices, cure periods, notice addresses and delivery methods must be followed before any statutory notice goes out.
- A nonpayment case requires a written rent demand (often a 14 day notice, but your lease terms could require longer); a month-to-month commercial holdover outside New York City requires at least one month’s notice.
- A lease-violation eviction is a holdover, which often requires a notice to cure, notice of termination, then the proceeding, and there’s often conditional limitation clauses in form leases.
- Commercial tenants get no rent regulation, Good Cause Eviction or warranty of habitability, but they can seek a Yellowstone injunction to freeze a cure period.
- The most common reason a Long Island commercial eviction is dismissed is a defective notice, not a weak claim.
Are commercial evictions really different from residential evictions on Long Island?
Less different than most landlords expect. Both are summary proceedings, filed in the same court: Nassau County District Court in Hempstead for Nassau properties, and one of the Suffolk County District Courts or Eastern Town Justice Courts for the town where the property sits. So same court, and same County Sheriff executing the warrant.
What actually differs:
The predicate notice. A residential month-to-month tenancy is terminated with a 30-, 60- or 90-day notice. A commercial month-to-month tenancy outside New York City is terminated on one month’s notice. For nonpayment, a 14-day written rent demand applies, but the residential five-day late-rent letter under RPL 235-e(d)] does not.
The lease controls more. Commercial leases also routinely require a written notice of default and a cure period before the landlord may terminate. Leases also often specify how notices are to be delivered, and are often required to be sent via certified mail, overnight courier, or personal delivery, in addition to the statutory requirements. Leases also often require the landlord to serve the tenant at both the property address, as well as at the corporate address, if different. A rent demand sent by regular mail when the lease says certified means the tenant now has grounds for a motion to dismiss. That is one of the reasons why commercial landlords need the right attorney handling their evictions.
Fewer statutory defenses, one powerful remedy. A commercial tenant’s defenses come from the lease and from procedure. But a commercial tenant served with a notice to cure can go to Supreme Court for a Yellowstone injunction, which tolls the cure period while the parties litigate whether a default exists. Residential tenants have no equivalent.
What are the grounds for evicting a commercial tenant?
In practice, two: the tenant has not paid rent, or the tenant is in possession after the tenancy has ended. Every commercial eviction we file on Long Island is one or the other.
Nonpayment. The tenant is behind on rent under a lease still in effect. The landlord serves the rent demand, then files a nonpayment proceeding. The judgment covers possession and the unpaid rent.
Holdover. The tenancy has ended and the tenant has not left. That covers a lease that expired by its terms, a month-to-month tenancy terminated on notice, and a lease the landlord terminated under its default provisions after the tenant failed to cure. All would be holdover proceedings.
Often commercial landlords in New York try to evict a tenant for a lease violation, such as illegal use of the premises. However, it’s rarely the practical route. A landlord whose tenant is using the space illegally almost always has a lease default to terminate on, and a holdover on that termination is the cleaner case.
If the problem is money, the case is nonpayment. If the problem is anything else, the lease has to be ended first, and the case is a holdover.
What happens if my commercial tenant stops paying rent?
The first step is reading the lease, not serving a notice. Many commercial leases require a written notice of default and a cure period before the landlord may treat nonpayment as a default, and some require that notice go to a specific address, by a specific method, with a copy to counsel. Those terms are enforced as written.
Once the lease’s requirements are satisfied, the statutory step is a written rent demand giving the tenant 14 days (or the time period required under the lease) to pay or surrender possession, served as the statute prescribes. If the lease calls for a longer period, the longer period controls.
If the tenant neither pays nor leaves, the attorney files a notice of petition and petition in the appropriate court, supported by the lease, a rent ledger that will survive a business-records objection, and the affidavit of service for the rent demand.
One caution. Once a notice has been served, talk to your attorney before accepting any money from the tenant. Depending on which notice is out and what the lease’s no-waiver clause says, accepting rent can be argued as a waiver of the notice, or produce a petition that no longer matches the demand. The fix is simple if the attorney knows before the check is deposited and expensive if they learn at the return date.
Can I evict a commercial tenant for violating the lease?
Yes, but the case is a holdover, and it only works if the lease was written to allow it. The landlord serves a notice to cure giving the tenant the period the lease specifies to correct the violation. If the tenant does not cure, the landlord serves a notice of termination ending the lease on a stated date. After that date the tenant is holding over, and the landlord’s attorney can then file an eviction petition in court.
Two things have to be true for this to hold up. First, the lease must contain a conditional limitation — language that the term ends on the landlord’s notice after an uncured default — rather than merely a right of re-entry. Without one, a summary proceeding may not be available and the landlord may be left with no remedy, or an ejectment action in Supreme Court as the only remedy. Second, the default has to be one the lease actually defines. Vague clauses are hard to enforce; specific ones give the court a basis to grant possession.
The practical obstacle is the Yellowstone injunction. A commercial tenant served with a notice to cure can move in court to toll the cure period, and a tenant that obtains one keeps the lease alive while the dispute is litigated.
If your lease has not been reviewed with eviction in mind, do it before there is a problem. A lease without a conditional limitation, a clear default clause and workable notice provisions limits your options when you need to move.
How do I serve a commercial eviction notice?
The statutory rent demand and the court papers are served under RPAPL 735; notices required by the lease are served the way the lease says. Getting either wrong is the most common reason a commercial case is dismissed, however clear the default.
RPAPL 735 permits personal delivery to the tenant; delivery to a person of suitable age and discretion employed at the premises, followed by mailing; and, after reasonable application, conspicuous-place service at the premises followed by mailing. For a corporate or LLC tenant, service is made at the premises the same way, and may also be required to be served at their corporate address under the terms of the lease. The attorney should read the process server’s affidavit before it is filed, not after the tenant’s lawyer does.
Lease-required notices are a separate question. If the lease says notice of default goes by certified mail, return receipt requested, to the tenant’s notice address with a copy to counsel, that is what has to happen, and the landlord has to be able to prove it. Sending a lease notice the statutory way does not cure a failure to send it the lease’s way.
What happens at the court date?
On the return date in Nassau or Suffolk District Court, the landlord’s attorney appears with the lease, every notice served with its proof of service, the rent ledger or documentation of the default, and the correspondence with the tenant. The tenant appears and answers, and the case is tried, settled or adjourned; or the tenant defaults and the landlord applies for judgment on proof of service.
Commercial tenants are more likely than residential tenants to appear with counsel, and their defenses are procedural and lease-based: the notice was defective, service was defective, the landlord failed to perform its own obligations under the lease, the landlord waived the default by accepting rent. The judge looks first at whether the landlord followed the steps the lease and the statute require. A landlord who did is in a strong position; one who did not is usually told to start over.
Delays come from three places: adjournment requests by the tenant’s attorney, challenges to service that require a hearing, and a bankruptcy filing, which triggers an automatic stay under 11 U.S.C. § 362 and stops the proceeding until the Bankruptcy Court grants relief.
How long does a commercial eviction take on Long Island?
The stages can vary, and the duration of each depends on the notice periods in the lease, the venue and court’s calendar, and whether the tenant contests. The lease’s cure and notice periods run first, then the statutory notice, then the court’s return date, then the warrant and the Sheriff’s execution.
Our article on how long an eviction takes in Nassau and Suffolk covers the court stages.
No attorney can promise a timeline. What an attorney can do is avoid the procedural errors that add a full cycle to the case.
The commercial eviction process in Nassau and Suffolk County, step by step
- The attorney reviews the lease and the file. The landlord supplies the lease and amendments, the guaranty, the rent ledger and all correspondence. The attorney identifies the ground, the lease’s notice and cure requirements and delivery methods, and confirms a conditional limitation exists if the case will be a holdover on a default.
- The attorney serves any lease-required notices first. A notice of default, then a notice of termination if the lease requires one, each sent exactly as the lease specifies, with proof retained.
- The attorney serves the statutory predicate notice. For nonpayment, the written rent demand under RPAPL 711(2). For a month-to-month holdover, one month’s notice under RPL 232-b. A process server serves it as the statute requires and executes an affidavit of service.
- The attorney files the notice of petition and petition in Nassau County District Court or the appropriate Suffolk County District Court after the notice period has run, and pays a $45 filing fee.
- A process server serves the notice of petition and petition with exhibits under RPAPL 735 and the attorney files proof of service by the statutory deadline.
- The attorney appears on the return date. The tenant answers and the matter is tried, settled or adjourned, or the tenant defaults and the attorney applies for judgment on proof of service.
- The court enters a judgment of possession, and in a nonpayment case, a money judgment for the rent, and issues the warrant of eviction.
- The Sheriff executes the warrant. The Nassau or Suffolk County Sheriff serves the required notice on the tenant, then removes the tenant and returns possession to the landlord.
Common mistakes in Long Island commercial evictions
Serving the statutory notice before the lease’s notice has run. The rent demand goes out on day one; the lease required a default notice and cure period first. The tenant’s attorney moves to dismiss, and the landlord starts over having lost the time and the filing fee.
Ignoring the lease’s delivery terms. Notice sent by regular mail when the lease says certified, to the premises when the lease names a corporate office, or without the required copy to the tenant’s counsel. Each is a defect the tenant can raise, and each is avoidable by reading the lease.
Accepting rent after serving a termination notice. In a holdover, accepting rent for a period after the termination date can be argued as reinstating the tenancy unless the lease’s no-waiver clause is clear and the landlord’s conduct is consistent with it. Route every payment through the attorney once a notice is out.
Changing the locks. Commercial self-help in New York is a trap. A landlord who re-enters by force or unlawfully is exposed to treble damages, and whether a “peaceable” re-entry under a lease clause is lawful is litigated case by case. The court process is slower than a locksmith and far cheaper than a wrongful-eviction counterclaim.
Waiting. Letting unpaid rent accumulate in the hope that the tenant recovers delays the proceeding, increases the judgment the landlord will have to collect, and can erode a guaranty whose exposure is limited to the period before surrender. Start the lease-notice sequence as soon as the default is clear.
FAQs:
No. Housing Court is a New York City court. On Long Island, commercial eviction proceedings are filed in Nassau County District Court or the Suffolk County District Court for the district where the property is located, the same courts that hear residential cases. In Eastern Suffolk County, eviction cases are heard in one of the Town Justice Courts. The procedure is a summary proceeding under RPAPL Article 7.
It depends on the ground and the lease. A nonpayment case requires a written rent demand giving the tenant at least 14 days notice. A month-to-month commercial tenancy outside New York City is terminated on one month’s notice. A lease-default holdover requires whatever cure and termination periods the lease specifies. Where the lease requires more notice than the statute, the lease controls.
Yes. A tenant behind on rent can be the subject of a nonpayment proceeding at any point in the term. A tenant in breach of another lease obligation can be evicted only after the landlord terminates the lease under its default provisions — notice to cure, then notice of termination — and the lease must contain a conditional limitation for a summary proceeding to be available.
Do not. A landlord who re-enters by force or unlawfully could face a damages or a wrongful-eviction counterclaim in the proceeding. Whether a peaceable re-entry under a lease clause is lawful in a commercial tenancy is decided case by case, and the downside of guessing wrong is severe. Obtain a warrant and let the Sheriff execute it.
The automatic stay under 11 U.S.C. § 362 halts the proceeding until the Bankruptcy Court grants relief from the stay. One exception matters to commercial landlords: if the lease expired by its stated terms before the bankruptcy petition was filed, the stay does not bar the landlord from recovering possession. under 11 U.S.C. § 362(b)(10). A lease terminated by notice, rather than by expiration, is treated differently.
Most eviction law firms charge at least $450 an hour for eviction services. However, the Long Island Eviction Law Firm handles commercial evictions for a one-time flat fee. Give us a call to discuss your options and the cost, or further details on what the flat fee covers are on our eviction lawyer cost page.
Talk to a commercial eviction attorney before the first notice goes out
If a commercial tenant on Long Island has stopped paying or will not leave, the lease decides what notice comes first. We read it before anything is served. Commercial evictions are handled for a flat fee in Nassau and Suffolk Counties. Call or text (631) 888-6989 for a free consultation.
