Types of Eviction Proceedings in New York State

Basic Eviction Process, Landlord Tenant Law

Tenant Eviction Process in Nassau County & Suffolk County, NY

Part 1: Types of Eviction Proceedings in New York State

In New York State, there are two primary types of eviction proceedings: Holdover Proceedings and Nonpayment Proceedings. Which type of proceeding you choose depends on many factors, such as the type of tenancy and your primary goal.

Let’s start with the type of tenancy. If you’re evicting someone that never agreed to pay rent – like a house guest that refuses to leave – then you must bring a Holdover Proceeding. A Nonpayment Proceeding is only an option if you have a tenant that has an agreement to pay rent, and they stopped paying the rent. So if this is you, you can scroll down to the Holdover Proceedings section.

If you have a rent-paying tenant with a term lease still in effect – in other words, if you have a 1-year or 2-year lease with your tenant, and it’s month 5 and they stopped paying the rent – you can only evict them with a Nonpayment Proceeding. A Holdover Proceeding is not available to evict tenants who have active term leases (term meaning more than a month-to-month tenant).

If you have a month-to-month tenant that has an agreement to pay you rent, and they stopped paying the rent, then you have a choice. You can choose to bring either a Nonpayment Proceeding or a Holdover Proceeding to evict your tenant.

In this scenario, which is the most common scenario – a month-to-month tenant who stopped paying their rent – you should chose whether to bring a Nonpayment Proceeding or a Holdover Proceeding based on your primary objective:

Is it more important to you to recoup the rent money, or to get the tenants out? In other words, if the tenants paid you all of the back rent owed, would you be ok with them staying and continuing to live there? Or has the landlord-tenant relationship degraded so much that you just want them out, no matter what?

If you are primarily focused on money (you’re a landlord that runs their apartments like a business), then you’ll most likely want to bring a Nonpayment Proceeding.

If you’re primarily focused on just getting the problem tenant out so you can re-rent to a better quality tenant, then you’ll most likely want to bring a Holdover Proceeding.

NONPAYMENT PROCEEDINGS

A nonpayment proceeding may be initiated when a tenant fails to pay the rent. While these proceedings can result in an eviction, their primary purpose is to recover unpaid rent. If the tenant pays the rent he owes, he gets to stay. If he doesn’t pay, he gets evicted.

Key Advantages to Bringing a Nonpayment Proceeding

Money Judgment

Allows landlords to seek a money judgment for unpaid rent.
Can evict even if they have a lease

You cannot bring a Holdover Proceeding to evict a tenant if they have an active term lease. You must bring a Nonpayment Proceeding.
Faster Court Access

Requires only a 14-day notice period (compared to 30–90-day notice period for holdover proceedings).

Limitations to Bringing a Nonpayment Proceeding

Tenant's Right to Cure

If the tenant pays all outstanding rent at any point during the proceeding, you must accept payment, and the case will be dismissed (tenant will get to "pay and stay").
Broader Defense Options

Tenants may raise additional defenses related to the condition of the property or landlord conduct that would NOT be available as a defense in a holdover proceeding. So if you have issues with the condition of the property or landlord conduct, a Holdover Proceeding may be more appropriate.
Limited Application

Nonpayment proceedings are only available for tenants who have an agreement to pay rent. A Nonpayment Proceeding cannot be used to evict other types of occupants (such as guests, licensees, or squatters).

TIP - Financial Recovery Limitations in Landlord-Tenant Court

Landlords - Trying to Recover Late Fees, Utilities, or Attorney’s Fees?

Charges other than unpaid rent (such as utilities, late fees, repair costs) cannot be pursued in landlord-tenant court. Landlord-tenant court can only give you possession of the property, and actual back rent owed. No other types of fees, awards or damages can be sought in your eviction action. This limitation applies even if these fees are specified in the lease. You can still pursue those claims in a separate small claims or civil action once your eviction action has ended.

HOLDOVER PROCEEDINGS

A Holdover Proceeding focuses exclusively on regaining possession of your property. Unlike a Nonpayment Proceeding, it does not include claims for rent. A Holdover Proceeding is used when either: The tenancy has been terminated or expired; or No landlord-tenant relationship exists.

Holdover Proceedings Are Most Common When:

A month-to-month tenant has become problematic;
A house guest (licensee) refuses to leave;
You want to remove a non-paying tenant regardless of their ability to pay;
You want to remove a month-to-month tenant, and you have problems with the condition of the property or illegal occupancy;
You have a “professional tenant” who knows the system;
You’ve purchased property at a foreclosure auction and need to remove occupants;
Squatters are occupying your property;
A live-in employee (such as a caregiver) has been terminated but won’t vacate.

Key Advantages to Bringing a Holdover Proceeding

No "pay and stay" option for occupants Limited defenses available to occupants
A more assured path to regaining possession.

Limitations to Bringing a Holdover Proceeding

Requires longer notice periods (30, 60, or 90 days) before your court action can begin
Cannot be used if you have an annual lease in effect with the tenant. Note: There is an exception if the tenant violates a fundamental lease term, and you have a notice to cure provision in your lease (most do not), and lease specifically allows for termination after expiration of the notice to cure period
Longer resolution: Takes longer to reach resolution compared to Nonpayment Proceedings because of the longer waiting period before going to court.
You cannot recoup unpaid rent in a Holdover Proceeding. You can recover what’s referred to as “use and occupancy” in a Holdover Proceeding, which is the rent for the term the tenant held over, which is typically 1-2 months of rent from the time the action began. So there is often a money judgment, just not for the full amount of back rent owed.

NOTE: A holdover proceeding does not mean you are waiving your right to recoup any back rent owed. You can still sue the person you’re evicting in a separate civil action in civil court for the back rent owed and damage done to the property after the eviction proceeding has ended. But the primary purpose of a holdover proceeding is possession. you will not receive a money judgment in this action for any rent owed, only possession of the property, and potentially money for use and occupancy, depending on the judge assigned and the events of the case.

So, Which Type of Proceeding Should You Bring?

Those who choose a Nonpayment Proceeding are primarily concerned with money, a faster eviction, and run their apartment like a business. If the tenant pays, they stay.

Those who choose a Holdover Proceeding are primarily concerned with just getting the person out, even if they have to waive the money to do so. Getting possession back is more important than the money.

Michelle Murtha, Esq.

Michelle Murtha is the managing member of the Long Island Eviction Law Firm, PLLC, and has been a fearless litigator fighting for her client's rights for almost 20 years. You can lean more about her on our landlord-tenant lawyers page.