I. After a Judge Orders an Eviction
When a judge orders you to be evicted, he or she may sign a warrant of eviction and also a money judgment. The warrant of eviction is the piece of paper that tells the sheriff or marshal to remove you from the property. (For more details on this, please see our Eviction Lifeline.) The money judgment is what allows the landlord to collect the amount of rent the judge has decided you owe. The money judgment will be filed in the County Clerk’s Office for your county and will stay on file for 20 years, unless you satisfy that judgment by paying the money you still owe the landlord. (For more detail on how and when the landlord can collect this money, see our Dealing with Debt Lifeline.)
There are two ways to “get rid of” a judgment – you can appeal the decision to a higher court or you can move to have it vacated. This Lifeline gives an overview of both.
II. Appealing an Eviction
To appeal the warrant of eviction and/or the money judgment means to bring the matter to a higher court and ask them to find that the judge made a serious mistake and the eviction and/or money judgment should be reversed. If the decision is from a Town, Village, or City court (most common for evictions in Northeastern New York) then you would appeal to the County Court for your county. If the decision is from a County or Supreme Court, then you would appeal to the Appellate Division, 3rd Department (for all sixteen counties that LASNNY serves—other counties may need to file their appeals in different departments of the Appellate Division). It is very important to understand that the judge or judges who hears the appeal will not want to hear from witnesses. Instead, they will look at the record of everything that happened (such as transcripts of the hearing and papers) and use that to decide whether the judge made a mistake at the hearing. You will need to order a transcript of the hearing or hearings, and you should ask the court clerk how to do this. You will need to pay for the transcript, but if you cannot afford it you should file a motion asking the court to waive the fees (below).
You must start the process by sending a Notice of Appeal to the landlord (or their attorney) and also filing it in the court that issued the warrant of eviction. You must do this as soon as possible. If the landlord (or their attorney) sends you a copy of the decision with a Notice of Entry, then you have 30 days to serve your Notice of Appeal on the landlord and file it with the court. (A Notice of Entry is a document that your landlord sends you, attached to a copy of the decision, that states the Order has been filed with the clerk of court. Many landlords do not send this notice, particularly if they do not have lawyers.) Otherwise your appeal will not be considered. Even if the landlord does not send you a Notice of Entry, you should file the appeal within 30 days of the decision if at all possible.
Unless you specifically ask the original court for a Stay Pending Appeal, the eviction will go forward. When you file your Notice of Appeal, you should also ask the court to stop, or “stay,” the eviction until the appeal is decided. In order to get the stay, the court may require you to deposit rent with the court, to agree not to damage the property, or to do something else that the court thinks is fair or necessary. This is called an “undertaking.” You can also suggest to the court what you think your undertaking should be. It is possible that the court will not agree to stay the eviction. If the court does not agree to stay the eviction, you might still be able to appeal it, but you would need to leave the property when ordered by the sheriff or marshal.
After you file the appeal, you will need to “perfect” the appeal, which means giving the higher court and your landlord written reasons why the decision was wrong. There are very strict time frames to complete this, and if you fail to do this then the appeal may be dismissed. There are also specific forms which you should follow. The New York State Unified Court System has guidance and sample forms available at https://www.nycourts.gov/courthelp/AfterCourt/appealsStarting.shtml. Some judges will give you (and your landlord) the chance to speak to them about why you think the decision was wrong; other judges will just look at your papers and at any papers your landlord may file.
Also, you may be asked to pay a fee in order to file an appeal. If you cannot afford to pay the fee, you may file a motion explaining to the court why you cannot afford the fee. If you cannot afford to pay for the transcript, you should explain that as well. Sample forms and more details are available through the New York State Unified Court System website, https://www.nycourts.gov/courthelp/goingtocourt/feewaiver.shtml .
III. Vacating a Judgment and Warrant
The other way you can undo the judgment and warrant is to explain to the court that issued it why you think they should not have been issued. If the court agrees with you, it can “vacate,” or take away, the judgment. However, you need to file papers with the court (and send them to your landlord) explaining why one or more of these reasons apply to you:
- The judgment is because of a default, meaning you did not show up for court. You must also show that you had a good reason to miss court and that there is a good possibility you would have won your case if you had been there. You should explain all these reasons in the papers you file with the court. If you are going to file for this reason, you must do so within one year of the judgment; however, the sooner you file, the better.
- You have found evidence that you did not know about at the time of your eviction hearing but which probably would have changed the judge’s decision. You may only do this if you could not have found out about the evidence in time to ask for a new trial (fifteen days from the original trial or hearing).
- The landlord or someone acting for the landlord committed fraud, misrepresented something, or behaved wrongfully in another way that changed the judge’s decision.
- The court did not have “jurisdiction,” which means that either the case was brought in the wrong court or the landlord did not serve you correctly.
- The order was based on a previous order which has been reversed, changed, or vacated. CPLR § 5015
Any judge can also stay or vacate their own warrant for good reason before it is executed. (A Warrant of Eviction is executed when law enforcement has served it and then come back to remove you from the property.) Even if you have already been removed from the property the judge can order that you be allowed back in if you show a good reason. (The law does not say what a good reason would be.) Additionally, if you were evicted for nonpayment of rent and you are able to pay the landlord all the rent or deposit it with the court before the warrant is executed, then the court must vacate the warrant. RPAPL §749(c)
To bring the matter back before the court for any of these grounds, you need to file a motion with the court that issued the warrant and judgment called an Order to Show Cause, as well as an Affidavit in Support of your Order to Show Cause. The Order to Show Cause is the actual motion before the court requesting that your case be reopened and reheard. The Affidavit in Support of your Order to Show Cause is where you explain why you think the court should grant your motion. This is where you will explain which of the reasons above you are using to have the warrant and/or judgment vacated, why you think you meet those grounds, why you think you should ultimately be successful, and any and all evidence you have to support that. You must sign this in front of a notary, and it should only include facts that you personally know. You may also ask other people to sign affidavits about the facts that they personally know.
The New York State Court System has created a program for tenants who do not have an attorney, so they can create their own documents and file them with the court to have a judgment vacated. You can find this program here: https://www.nycourts.gov/courthelp/diy/tenantVacateDefault.shtml
If the judge grants your Order to Show Cause, she or he will tell you to serve it on the landlord by a specific date and in a specific way. You must follow the judge’s directions and prove to the court that you have done that. The judge will schedule a hearing for a specific day, which is your chance to explain to the judge why the judgment and warrant should be vacated. The judge may do a number of things, including scheduling a completely new hearing on the eviction. At that hearing you should raise any and all defenses you have to the eviction. Please note that the judge does not have to grant your order. It is also very important that if a judge signs your Order to Show Cause, in order to stop the eviction until you have your hearing, you will have to bring a copy of the signed Order to Show Cause to the sheriff or marshal.
