Residential Holdover Proceedings

Holdover proceedings are started to evict a tenant or occupant for reasons other than nonpayment of rent. Some examples of a holdover proceeding may arise if a tenant breaches a lease, engages in objectionable or nuisance behavior or conduct, fails to surrender possession after expiration of a lease or license, fails to provide access to the owner as mandated by the lease or law, or is using “Airbnb.”   Prior to commencing a holdover proceeding, we draft and serve the predicate notice of termination, When the tenant fails to surrender possession after the expiration of the notice of termination, we initiate a holdover proceeding by the filing and service of a notice of petition and petition.


Commercial Holdover Proceedings

At Levy Tolman LLP we help owners enforce the terms of commercial leases so that owners and landlords can minimize their liability and achieve their business goals. We obtained a major victory for our client, the owner of  the building, in the case of  234 Troy Avenue LLC v. Joseph & Leyla Barbershop, Inc., L&T Index No., 74740/2016 (Mostofsly, J., Civ. Ct. Kings Co., November 17, 2016). In this case, we commenced a holdover proceeding against the commercial tenant for failing to have insurance as required by the lease for the first 18 months during the 10-year lease term. Even though the tenant purchased insurance during the course of the proceeding, the Court granted owner’s motion for summary judgment and found that the absence of insurance was an incurable default, subjecting the tenant to eviction. The Court also enforced the use and occupancy holdover rate of the lease, which mandated that in the event the lease is terminated for cause, the tenant is pay an additional penalty of at least 2x the rent in the lease.


Non-Primary Residence Proceedings

At Levy Tolman LLP, we prosecute holdover proceedings against rent stabilized and controlled tenants who are misusing their apartment in violation of the rent stabilization law and code. New York rent regulations require that rent controlled and rent stabilized tenants use their apartments as their primary residence. When an owner has a good-faith basis to believe that a rent stabilized or rent controlled tenant is not primarily residing in their apartment the owner is entitled to commence an eviction proceeding. Nonprimary residence proceedings typically involve complex legal issues and may require document production, depositions, motion practice, and trial. At Levy Tolman LLP we have years of experience helping our client’s increase their building’s profitability by successful prosecutions of nonprimary residence proceedings so that the owner may meet its business goals to charge market rents.


930 940 LLC v. Quashie, et al, 2018 N.Y. Misc. LEXIS 3263 (June 4, 2018)

This nonprimary residence proceeding was commenced by the owner on a belief that the tenant, a man in his 50s, was not residing in the premises because he only ever saw a woman in her early 30s in the apartment. We took over this case from a different law firm after two years into the proceeding and quickly engaged in discovery, deposed the occupant of the apartment, investigated the primary tenant’s connections to an alternate address. After discovery a voter registration, marriage certificate and driver’s licenses are linked to an alternate address, we conducted a trial in the Housing Part in which the Court ordered the eviction of the rent stabilized tenant and any occupants based upon the non-primary residence proceeding. Click here for the decision.


MP Cornelia Property Group LLC, et al v. Randal Richardson, L&T Index No: 78995/14 (Katz, J., Civ. Ct. New York Co., May 13, 2015) 

In this nonprimary residence proceeding, we discovered that the tenant of the rent stabilized apartment was using his apartment for short-term rentals for profit in violation of the rent stabilization law and code. The tenant moved to dismiss because the expired renewal lease was signed 10 months late and was back-dated. On behalf of our client, the owner/landlord, we cross-moved for discovery and for use and occupancy. The court denied the tenant’s motion, finding that a back-dated, but fully executed renewal lease is not a defect to the proceeding. The court further granted discovery and use and occupancy payments. The court order provided our client leverage to obtain a quick settlement whereby the tenant agreed to vacate the premises instead of revealing his financial records which would show illegal profiteering. Click here for the decision.



New York’s rent laws provide that an occupant may be entitled to possession of a rent stabilized or rent controlled apartment where the occupant has primarily resided with the tenant of record for two years (or one year under certain circumstances) in the apartment prior to the tenant permanent vacating the premises. At Levy Tolman LLP we defend owners from succession claims and also assert succession defenses for our tenant clients.   


Licensee Holdover Proceedings

When a rent controlled tenant dies, an owner is entitled to terminate the tenancies of the remaining occupants and evict the occupants, unless the occupants have a right to possession of the premises, which is usually raised in a succession claim or defense. Licensee holdover proceedings present a unique opportunity for an owner to recover possession of an apartment that has not had a new tenant since at least June 30, 1971.When a rent controlled tenant dies, owners have an opportunity to renovate the apartment, charge market rent, and increase their building’s rent roll and profitability. We represent both owners and tenants in licensee holdover proceedings.


Kong’s Realty v. Hector Varlea, L&T Index No. 64733/2014 (Stoller, J., Civ. Ct. New York Co. June 27, 2017)

In this licensee holdover proceeding, the owner of a rent controlled apartment sought the eviction of the occupant after the death of his mother the rent controlled tenant of record. The rent for the subject apartment, a one-bedroom apartment in Chinatown was less than $100 per month! We represented the occupant, a nursing home housekeeper, and asserted a succession defense. After the completion of discovery, we conducted a three day trial. The Court issued an 18 page decision in which it found that the occupant was not subject to eviction and was entitled to the protections of the rent control law as a successor tenant. Click here for the decision.


92 East LLC v. Jessica Lee, et al. (L&T Index No. 74391/2016 (J. Stoller, Civ. Ct. New York Co. Dec. 20, 2016)

In this licensee holdover proceeding commenced after the rent-controlled tenant died, we represented the owner who sought possession of the apartment where the rent was less than $100 per month in Chinatown. The occupants retained counsel, asserted a succession defense and moved for discovery from the owner. We opposed the motion and moved to compel the occupants to produce documents and sit for depositions. The Court denied the tenants' discovery motion and granted the owner’s motion for discovery. Click here for the decision