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Stays after Entry of Judgment in Nonpayment Proceedings


In General: Stay Of Enforcement Of Judgment Or Order Without Appeal
Stays After the Tenant has Answered or Appeared
Stays If The Tenant Has Not Answered
Staying Eviction Prior to Issuance of Warrant
Stay of Evictions of Persons or Dependents of Persons
Serving in the Military
Automatic Stay After Filing Bankruptcy Petition


In General: Stay Of Enforcement Of Judgment Or Order Without Appeal

A tenant who lost at trial and seeks to stay the issuance of the warrant of eviction must apply to the judge who granted the landlord the judgment.

A landlord or a tenant seeking to obtain an extension of time to comply with orders to pay moneys, vacate the premises or make repairs, or to correct mathematical errors may apply to any judge.

The court has general power to stay proceedings in a proper case, upon such terms as may be just, as well as specific powers as discussed below.

In order to obtain a stay you must come to court and fill out an Order to Show Cause. To read more about this process click on Orders To Show Cause. To find out where to go in your county, click on Locations & Phone Listings.

To learn about stays of enforcement of judgments when appealing, click on Appeals.

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After the Tenant has Answered or Appeared

If a tenant has answered, appeared in court and the Judge has awarded a judgment to the landlord, the court cannot stay the issuance of a warrant for more than five days. If more than five days have passed, the court can only stay the issuance or execution of a warrant if the tenant deposits the amount due on the judgment with the clerk or provides documentary evidence (receipts, checks) that the amount has been paid. For further information, you may refer to the Real Property Actions and Proceedings Law section 747-a.

The court has the power in some instances to stay the issuance or execution of a warrant even without a deposit. It will do so in limited circumstances. The court may, however, sign an order to show cause without a stay at any time.

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If The Tenant Has Not Answered

If a tenant fails to answer a nonpayment petition within five days from the date of service and petitioner is awarded a judgment on default, a judge may stay the issuance of the warrant for no more than ten days from the date of service of the petition and notice of petition.

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Staying Eviction Prior to Issuance of Warrant

A lessee or a tenant in a nonpayment proceeding seeking to stay the issuance of the warrant of eviction may do so by depositing in court the full amount claimed on the petition plus costs and filing fees before a warrant is issued.

A lessee or tenant who has taken the benefit of an insolvency statute or has been adjudicated bankrupt, may obtain a stay of the issuance of a warrant at any time before the warrant of eviction is issued by paying the filing fees for the petition and by depositing an undertaking for the amount directed by the court and continuing to pay the rent as it becomes due.

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Stay of Evictions of Persons or Dependents of Persons Serving in the Military

A landlord may not evict a person serving in the military, or his or her spouse, children or other dependents from an apartment, during the period of military service without an application to the court. On such application the court may stay the proceedings for six months, unless the court determines that the respondent’s ability to pay rent is not materially affected by the military service.

Under certain circumstances, a person serving in the military or his or her dependents may also seek a stay of an action or proceeding or a stay of the enforcement of a judgment or order.

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Automatic Stay After Filing Bankruptcy Petition

When a residential tenant files a bankruptcy petition, an automatic stay prevents the landlord from bringing or continuing a case to obtain possession and from enforcing a judgment obtained before the start of the bankruptcy case. The purpose of the stay is to give the debtor a breathing spell from his creditors.

The automatic stay only applies to proceedings concerning property in which the debtor has an interest at the time the bankruptcy proceeding is commenced, which is when the bankruptcy proceeding is filed.

In landlord/tenant cases the court may determine that the tenant no longer has an interest to protect at the time of filing a bankruptcy petition if the warrant of eviction has already issued. In both the New York State courts and the federal Bankruptcy Court, depending on the facts of the individual cases, the issuance of the warrant of eviction may or may not be a sufficient basis upon which to lift or modify the automatic stay, or to conclude that the bankruptcy petition did not qualify for an automatic stay.

After a tenant files for bankruptcy a landlord may seek to have the stay in Bankruptcy Court vacated, in order to commence or continue an eviction proceeding. The Bankruptcy Court may terminate, modify or condition the stay based upon various factors, including payment of ongoing rent, the condition of the premises and the equities of the case. If the stay in Bankruptcy Court is lifted, the Civil Court will have jurisdiction to hear and decide the eviction proceeding, and the landlord who obtains a judgment and warrant of eviction will be able to enforce a possessory judgment with eviction.

If the tenant’s debt, which includes past rent due, is discharged at the conclusion of the bankruptcy proceeding, the landlord may then seek recovery of the premises and eviction of the tenant/debtor. This is because while the debt may have been discharged, it has not been extinguished, and discharge of debt is not equivalent to payment of debt. A discharge only prevents a creditor from proceeding against a debtor on the debt as a personal liability, but does not eliminate any of the other consequences of that debt. Therefore, as long as the landlord does not attempt to obtain a money judgment for a discharged debt, the landlord is free to commence a nonpayment proceeding to recover possession. Thus a landlord may evict the tenant/debtor for his/her failure to pay rent which has been discharged in bankruptcy.

A debtor may voluntarily repay a debt that has been discharged even though the debt can no longer be legally enforced.

To find the Bankruptcy Court in your county, click on Locations.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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