A Tenant's Guide To Housing Court

Part 2 -- How To Stop An Eviction By Getting An Order To Show Cause

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If you failed to answer the dispossess within 5 days, failed to appear in court, or never received a dispossess, you may receive a 72-Hour Notice of Eviction (see Sample B). You can also receive a 72-Hour Notice of Eviction if the landlord obtained a judgment against you and you failed to pay the full amount or you paid the full judgment, but the landlord is trying to evict you anyway. Whatever the reason, receipt of a 72-Hour Notice is extremely serious and can result in your eviction if not handled promptly. The only way to prevent the landlord and his or her Marshal from evicting you is to get an Order to Show Cause (see Sample C side 1, side 2).

To Get An Order To Show Cause, Follow These Steps.

• Get a blank Order to Show Cause and Affidavit from the Clerk of the Housing Court, 141 Livingston Street, 2nd Floor, Brooklyn, New York. You must have with you some paper from your case that shows your index number.

• Fill in the Affidavit explaining why you did not go to court or why something else happened that resulted in a judgment against you. For example:
  • you never received the dispossess;
  • you were sick and could not appear on the court date;
  • your subway or bus was delayed;
  • the welfare department was slow in issuing a check needed to satisfy the judgment;
  • you went to the wrong courtroom on the hearing date.
  If you have another reason, list it. You must also list your defenses to non-payment of rent (for more on defenses above). The Clerk will notarize the Affidavit.

• The Clerk will fill in the dates on the Order to Show Cause, including the date on which you must return to court. The Clerk will tell you where to take the Order to Show Cause to get a judge to sign it. The Clerk will also give you a blank affidavit of service.

• The judge will read your Affidavit and decide whether to sign the Order to Show Cause. If the judge refuses to sign the Order, you should contact a lawyer. You can also go directly to the Appellate Term, 111 Livingston Street, 19th Floor, Brooklyn, New York, and ask a judge there to sign it. If the Appellate Term judge refuses to sign the Order to Show Cause, there is nothing else you can do. Judges usually sign orders unless you have had what they consider to be too many Orders to Show Cause signed already or unless your claims are inconsistent or unbelievable.

• Serve the signed Order to Show Cause on the Marshal if you've already received a 72-Hour Notice of Eviction. The Marshal's name and address are on the 72-Hour Notice. Go to the Marshal's office and give one copy to the person in charge of the office. Have the person in the Marshal's office who takes the papers acknowledge receipt. If you haven't received a 72-Hour Notice, you don't have to serve a Marshal.

• Serve the signed Order to Show Cause on the landlord or landlord's attorney by giving one copy to whomever accepts it. Have the person who takes the papers acknowledge receipt. If the landlord or his or her attorney's office and the Marshal sign that they received the papers, you do not need a notarized Affidavit of Service.
  If the landlord or his or her attorney's office refuses to take the papers, leave them anyway. Complete an Affidavit of Service from the Clerk's Office. Describe the person you served and give the date and time you served the papers. Sign the Affidavit of Service in front of a notary.

• Go to the court, to the courtroom at 141 Livingston Street listed on your Order To Show Cause, on the date listed on the Order To Show Cause. The courtroom might be the courtroom in which you appeared earlier in your case. It also might be the first floor courtroom, Part 19. If you are confused about where to go, show your papers to a court officer and ask for help. Be there at 9:15 a.m. so that you will be ready when your name is called. Do not arrive late for your court date or you will be evicted. Be sure to have your completed Affidavit of Service with you.

• Answer "tenant" when your case is called. If the landlord does not appear, the court will ask to see your proof of service. If you show the signatures from the landlord and Marshal or your completed Affidavit, the judge will give you a date for a trial. If the landlord does appear, your case will be called a second time. At that time ask the judge for a trial. Make sure that you have proof of your defenses with you so that you can show the judge why you need a trial. You will also need to tell the judge why you did not appear in court or failed to answer the original dispossess. If the trial is postponed to a later date, make a note of the date, time and room number.

Go to Part 3