Judge Can't Delay Eviction

Facts: Landlord sued to evict tenant for nonpayment of rent. Tenant didn't appear in court. Landlord showed that it had sent its notice of petition and petition and had filed the proper court papers for getting a default judgment against tenant. The court ruled for landlord based on tenant's default. But the judge's order stated that the court could issue an eviction warrant five days after landlord sends a copy of the judgment of possession to tenant by regular mail with a certificate of mailing and then files the proof of the mailing with the court. Landlord then sued to compel the court to issue the eviction warrant without requiring it to send the judgment to tenant. In response, the court issued the eviction warrant, but amended the judge's order to delay execution of the eviction warrant until five days after landlord sends the judgment to tenant. Landlord sued again to compel execution of the eviction warrant without these added requirements. The court ruled against landlord, and landlord appealed. The appeals court ruled for landlord, in part, and the Civil Court that issued the order in question appealed to the State's highest court. Court: Landlord wins. The judge had no legal authority to add a procedural safeguard as a matter of policy for the benefit of defaulting tenant in a nonpayment eviction case. RPAPL Section 749(1) states that if a final judgment is rendered in landlord's favor, the court ''shall'' issue a warrant directing the City Marshall to put landlord in full possession. The only discretion the law gives judges is to delay the issuance of the eviction warrant for 10 days from the date landlord sends the notice of petition. The default judgment in this case was issued long after landlord sent the notice of petition. There may still be circumstances where, for good cause shown, a court can delay execution of an eviction warrant. In this case the court delayed execution of the eviction warrant for no particular reason other than the judge's policy.

Mennella v. Torres: NYLJ, p. 27, col. 1 (5/6/98) (Ct. App.; Levine, J, Kaye, CJ, Titone, Bellacosa, Smith, Wesley, Ciparick, JJ)