Obtaining an Order of Protection

Although it seems that nearly everyone has heard of an order of protection, most people know very little about the process of obtaining one. This document can only be procured through the court system and therefore has a legal process connected with it.

How to File for It

In the state of New York, both the Criminal Court and the Family Court can issue orders of protection. The Criminal Court can only give an order of protection against someone who has been arrested for abusing you. In all other instances, you must file a petition with the Family Court. In order to qualify for an order of protection, the abuser must be someone close to you. This qualification includes a present or former spouse, a relative, someone with whom you have had a child, or someone with whom you have had an intimate relationship. You must also describe what the abuser did that caused you to seek the order of protection.

Appearing in Court

Once you have filed the petition, you will be assigned a date to appear in court. If the judge agrees with your request, you will be granted a temporary order of protection. The individual in question must then be served with a notice that the order of protection has been requested. Another court date will be set where both you and the other party must appear. At this point, he may simply agree to the order of protection without admitting guilt, or he may refuse it. If he refuses it, the case will go to trial, and each side will have the opportunity to present evidence. The order of protection will not be permanent until the trial is concluded, but the judge will likely grant an extension on each court date.

What It Provides

An order of protection can ask for a number of different provisions. The individual may be restricted from contact with you or your children or even barred from certain buildings such as your home or workplace. He may be ordered to stop contacting you in writing or by phone. There may also be provisions regarding payment of damages or return of belongings.

If It Is Violated

Once you have obtained an order of protection, you should keep a copy with you at all times. If the individual violates the order, you should immediately call the police and show them the document. He should then be arrested for the violation.

Anyone in need of protection from someone else is already in a difficult and scary situation. An attorney experienced in family law is essential for assistance and guidance through the sometimes-intimidating process of obtaining an order of protection. Don’t try to struggle through alone. Contact the law offices of David Witkon today for a free consultation.



Evicting Non-Paying Tenants

Something most landlords dread is the process of evicting non-paying tenants. Without good information, a landlord may unknowingly violate the law in an effort to recoup his losses. In order to protect the rights of all involved, the process of eviction is quite complicated.

Demand for Payment

Before a landlord can start court proceedings against a tenant, he must first present the tenant with a demand for payment of the past due rent. While the demand may be made orally, it is usually best to submit it in writing. A landlord is not allowed to give this notice directly to a tenant. He must use a representative — either a process server or another person who meets certain qualifications. There are also specific guidelines as to when and how the notice must be served. Once the demand has been correctly delivered, the landlord must wait three days before beginning court proceedings.

Initiating the Nonpayment Summary Proceeding

The next step in the process of evicting non-paying tenants in the state of New York is to file two forms with the court. The first is called a Notice of Petition: Nonpayment Proceeding and the second is a Nonpayment Petition to Recover Possession of Real Property. Once these papers are submitted to the court and the fee is paid, the court clerk will assign a docket number and a date on which the case will be heard. Copies of these papers must then be delivered to the tenant using the same method described above.

The Court Date

In the actual court case, the landlord should present evidence of nonpayment including rental receipts, a copy of the lease, etc. The tenant may also try to bring evidence that rent has been paid or that it has been withheld for a legitimate reason. The judge will examine all the evidence, listen to the arguments, and make a decision. If the judge accepts the claims of the landlord, he will give a Judgment.

The Actual Eviction

The Judgment gives the landlord the right to evict the tenant and take back possession of the property. However, a landlord cannot personally evict a tenant. Instead, he must obtain a Warrant of Eviction, and then ask a law-enforcement officer to perform the actual eviction. 72 hours of notice must be given to the tenant before he is evicted.

As can be seen from this brief overview, the process of evicting non-paying tenants is very complex. If any of these forms are filled out incorrectly, not filed properly with the court, or imperfectly served on the tenant, the case for eviction may be completely dismissed. For this reason, it is wise to use the services of a lawyer when attempting to evict a tenant. If you are a landlord in this situation, contact the law office of David Witkon today for a free consultation.