Getting A Default Judgment In A Nonpayment Proceeding

Written By: Michelle P. Quinn

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You’ve served your rent demand, no payment. You’ve started your nonpayment proceeding, no answer. Now you’re ready to ask the court to grant you a judgment of possession based on the tenant’s default. Easy, right? Not really. There are a number of items on the judge’s and the warrant clerk’s checklist that must be satisfied first. 

If your petition was verified by an attorney (as they frequently are), you must submit an affidavit of facts by someone with personal knowledge (usually the managing agent). The affidavit asserts essentially the same information as set forth in the petition, with a few additional, necessary facts. 

The Affidavit

The affidavit should include a statement that the tenant is not in the military or dependent for their support on someone in the military, another requirement of the Court. The managing agent, doorman or super must inquire, in person or by phone, directly of the tenant or of neighbors who may know the tenant. Both questions must be answered in the non-military affidavit, with a description of the efforts made to find out.

Fictitious Respondent

A common practice is to name a fictitious respondent in the proceeding in case the identity of all of the occupants of the apartment is not known. Before you can get a default judgment, you must “dispose” of these respondents, as you cannot attest to the non-military status of a fictitious person. You can file a Notice of Discontinuance, however some boroughs require that it be done by motion if it has been more than five days since the petition was served. 

Once you have all of this information, you submit everything together with a Request for Final Order to the Court. If your submission is complete, a default judgment will be issued.

about the authors

Michelle P. Quinn


Michelle P. Quinn represents cooperative and condominium boards, businesses, and individuals regarding issues with shareholders and owners in commercial and residential landlord-tenant litigation, including summary proceedings, administrative agency hearings, and Supreme Court actions and appeals.  She has substantial experience with Mitchell-Lama cooperatives, redevelopment companies, and tenancies protected by New York State Rent Regulation.

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