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Eviction Case of the Week

by | Apr 29, 2023 | Landlord-Tenant |

Our “Eviction Case of the Week” series has returned.  Each week we will discuss an interesting Landlord-Tenant case in which we were involved as counsel or observed while appearing in the Courts.


At the Nassau County District Court in Hempstead, New York we represented the current owner of a home (landlord) who had inherited the house from a relative.

Within the home were other relatives who had paid rent to the former owner as well as to the current owner.  Our client wished to terminate the tenancy of the tenants and served them with a written 90-Day Notice of Termination.  Following the expiration of that notice, as the tenants did not vacate, the client (landlord) commenced an eviction case (holdover proceeding) seeking possession of the premises.

The tenants, in return, filed a Motion to Dismiss on the grounds that they were not properly served with the Notice of Petition and Petition as the papers were not served on them in-hand but were rather left when the tenant had communicated with the process server but refused to open the door, and separately, based on the position that as a “family member”, they could not be evicted.

The Respondents’ (tenants) Motion to Dismiss was denied by the Court as the court found:

1.That service was in fact proper and complete (there is case law which holds that “service of a pleading may be accomplished by leaving it in the “general vicinity” of a person to be served who “resists” service”; for example, “if the person to be served interposes a door between himself and the process server, the latter may leave the [summons] outside the door, provided the person to be served is made aware that he is doing so); and

2. The “familial exception” did not apply.  Courts have held that the mere fact that the parties are “family” members does not give rise to the familial exception defense. Rather, there must be a clear showing of a legal support obligation.    

Once the Court made the tenants aware of its determination on the Motion, the tenants were left with the option of proceeding to an immediate trial or settling the matter.  Ultimately, the Respondent/Tenants entered into a Stipulation of Settlement with the Petitioner/Landlord agreeing to vacate and surrender the premises on or before a specific date, or otherwise face a physical eviction by the Nassau County Sheriff’s Office.

In summary, even family members can be evicted in many instances.  Whether you are the landlord or tenant, it is best to consult with an eviction attorney such as our office to discuss your rights and remedies.


The Law Office of Bradley D. Schnur, Esq., P.C. represents residential and commercial landlords and tenants in eviction proceedings on a daily basis throughout Metropolitan New York (including Nassau County, Suffolk County, Westchester County, and Queens).  Should you be in need of assistance in connection with a landlord or tenant eviction issue, please contact us at 516-932-4400 or 914-363-6250.