A: A City Marshal may conduct an eviction or legal possession only after a court has ruled on the landlord's petition for removal and issued a Warrant of Eviction to the marshal.
Q: What is a petition for removal?
A: In order to start a proceeding to evict a tenant, the landlord, or his or her attorney, must prepare a petition requesting a court hearing, which must be served on the tenant and filed with the court.
Q: The court has ruled in my favor. What happens now?
A: Before a marshal may conduct an eviction, he or she must first request that the court issue a Warrant of Eviction. In New York City, City Marshals and deputy sheriffs are the only public officers authorized to request a Warrant of Eviction from the court.
Q: What is the difference between a marshal and a sheriff?
A: New York City Marshals are public officers, appointed by the Mayor, but they are not paid employees of the City of New York. They earn income by performing certain tasks in New York City Civil Court cases, including carrying out evictions. City Marshals charge fees for their services. In August 1997, the New York State Legislature authorized marshals to also enforce money judgments, but not eviction orders, of the New York State Supreme and Family courts. In New York City, most eviction cases are brought in the Civil Court.
The City Sheriff is the enforcement officer of the New York State Supreme Court and is authorized to enforce the judgments, including evictions, of both the Supreme and Civil Courts. The Sheriff and his or her deputies are paid employees of the City of New York. Both City Marshals and the City Sheriff are required by law to charge the same fees for their services, although their procedures for collection of fees may differ.
Q: Should I choose a marshal or a sheriff to carry out an eviction?
A: The Department of Investigation cannot advise you to choose either the City Sheriff or a City Marshal. The decision to hire either a marshal or a sheriff is one that you make based upon all the information available to you about their services.
Q: What is the difference between an eviction and a legal possession?
A: In both evictions and legal possessions, the City Marshal returns control of the real property (apartment, store, etc.) to the landlord. In order to accomplish this, the marshal must see that any entrance locks on the premises to which the tenant may have access are changed. In an eviction, the tenant's belongings are moved under the supervision of the marshal and stored at a private warehouse. In a legal possession, the tenant's personal property remains under the care and control of the landlord until the tenant can arrange to transport the property to another location.
Q: In a legal possession, can the landlord take a tenant's belongings?
A: No. In a legal possession, the landlord may move the tenant's belongings to a private warehouse at the landlord's expense. Warehouses may charge tenants storage fees and may sell the tenant's property if the fees are not paid.
Q: Who decides if a tenant is removed by eviction or legal possession?
A: The marshal acts in consultation with the landlord in determining whether to proceed with an eviction or legal possession. Ultimately, however, it is the landlord's choice.
Q: As a tenant being evicted, what should I expect to happen?
A: A marshal must serve the tenant with a Notice of Eviction, before the eviction. Simply stated, this means that the marshal must wait at least fourteen (14) days after service of the Notice of Eviction before evicting the tenant.
Q: How is the Notice of Eviction served?
A: The City Marshal must attempt to serve the tenant personally, or to serve a person of suitable age and discretion at the premises. If this is unsuccessful, the marshal must conspicuously post the Notice of Eviction on the door of the premises or place it under the door, and within one day, mail copies of the Notice of Eviction by certified mail and regular mail. The Notice itself must also be dated, and the date of the Notice may not be earlier than the mailing date.
Q: Can a Notice of Eviction expire?
A: If, after the marshal has served the Notice of Eviction, the eviction or legal possession is not conducted within thirty days of the earliest date on which it could have been conducted, or if a court temporarily stays the eviction and does not expressly waive the requirement of a new notice, the marshal, before proceeding with an eviction, must send a new Notice of Eviction, by regular mail.
Q: If I refuse to admit the marshal, can he just enter my premises to evict me?
A: In enforcing a Warrant of Eviction, a marshal must first knock on the tenant's door, identify himself or herself as a City Marshal, and state the purpose of the visit. If the tenant is not home or refuses to admit the marshal, be advised that he or she is authorized to gain entrance to the premises to enforce the warrant.
Q: Do I, as a tenant, have any recourse to prevent a marshal from carrying out an eviction?
A: The tenant may ask a court to issue an Order to Show Cause (OSC) and a Stay, an order staying, or delaying, the eviction until the issues raised by the tenant are addressed on a hearing date set by the court. If the marshal is served with a signed OSC that stays the eviction, he or she is legally bound by the directions of the court, but if the court does not stay the eviction, the marshal must go forward with it. Unless otherwise directed by the court, the marshal, after being served with an OSC that stays the eviction, must serve an additional Notice of Eviction by regular mail before conducting the eviction or legal possession.
Q: The tenant being evicted is elderly. Would the marshal take this into account?
A: Yes. Before conducting an eviction or legal possession at a residential premises, the marshal must find out whether the premises are occupied by any individual, such as disabled, elderly, or infirm adults, or unattended children, who are unable to fend for themselves. If such a person occupies the apartment, the marshal must notify DOI, who, in turn, notifies Adult Protective Services (APS), a division of the New York City Human Resources Administration.
Q: My neighbor is elderly and forgetful at times. Yesterday, he mentioned something about being evicted. How do I know if this is true, and what can I do to help him?
A: Find out what papers your elderly neighbor received. If he or she has a City Marshal's Notice of Eviction, call that marshal's office (the marshal's name, address, and telephone number are on the notice), ask if the eviction has been scheduled, and provide whatever information you have about your neighbor's age and physical and mental condition. The marshal may ask for documentation of your neighbor's age or disability. If you are aware of a tenant facing eviction who, because of a physical or mental impairment, may be unable to fend for himself or herself, in addition to calling the marshal, you may call APS yourself at 212-630-1853.
If your neighbor has not received a marshal's Notice of Eviction, but has other eviction papers, you can bring them to the New York City Civil Court in the borough where the building is located. The court will have a record of the case, including, if applicable, the name of the marshal who received the Warrant of Eviction.