Order of Show Cause
An Order to Show Cause is a decision of a court which usually directs one party to provide reasons why the court should not grant some type of relief to another party. In most instances, a judge may only sign an Order to Show Cause if there is an emergency situation such as a non-payment of rent eviction, lack of essential services or illegal lock-out of a tenant, or if there is a pressing requirement for expediency in the matter at hand.
In housing court, an Order to Show Cause is intended to be used in connection with certain emergency applications. The applications that qualify for an Order to Show Cause in housing court are for Non Payment of Rent (NPR) cases where the rent has not been paid for 3 consecutive months, for a "summary holdover" where a tenant must be evicted within 10 days, and for Non Payment of Use and Occupancy (U&O) where rent has not been paid for residential premises that has been abandoned or illegally vacated by a tenant. For these applications, the Order to Show Cause is used to get the ball rolling so the application can be made returnable before the court . The Order to Show Cause must include the basic information such as a caption, an index number, the names of the parties, the address of the premises, and a general statement of the applicant’s position. Once the Order to Show Cause is signed by the judge, it becomes effective. The party seeking relief must serve the Order to Show Cause as well as the underlying papers on the other party, the landlord in the case of a tenant, and the court. Papers can be served on the day the application is made as long as the application is made in sufficient time for the respondent to answer on the return date before the court. A Party served with an Order to Show must answer the opposing party’s motion by the return date set forth in the Order. An Order to Show Cause can also stay an eviction proceeding. The action must be prosecuted on the day set forth in the Application. The burden of proof of the applicant is a lower standard than that of a Complaint, so the applicant can win the motion merely by showing probable success on the case and the serious consequence to him/her if the stay is not granted.
Filing the Order to Show Cause
In the New York City Housing Courts, you must fill out and submit a form called the "Order to Show Cause." If, for instance, you need the Court’s permission to engage in discovery prior to your trial, send an order to show cause to the Housing Part Clerk in your assigned housing court. The order to show cause must set forth the return date (i.e., the date that the Court will hold the hearing) and give the respondent landlord notice of your application. Your order to show cause should also contain a copy of the notice of petition and petition – or a separate copy of the petition – and an affirmation (or affidavit) by you or your lawyer setting forth the factual and legal basis for your request.
We have prepared a form order to show cause with instructions for your benefit. You can view it as a Word document here or as a pdf document here. We do not provide a form of order to show cause for every application because each application has its own unique requirements. These examples should give you a good sense of how to prepare your own.
The Reasons for Filing an Order
An Order to Show Cause can be filed for a variety of reasons. Most often, these orders are filed before or during an eviction. Most common are requests to stay an eviction. But they can also be filed to re-open a case, back rent claims, damages, and attorneys’ fees.
If a tenant receives a Judgment for CCAP (money) and the tenant believes that he paid rent, he can file an Order to Show Cause to re-open their case and ask that the Judgment be vacated because there is a question of fact about whether the tenant paid the rent. In a CCAP eviction, the landlord pays their attorney and is reimbursed by the City Controller. Therefore, the rent they are claiming is owned to them by the City upon payment of the Judgment.
A tenant can file an Order to Show Cause to obtain money after Judgment in cases where they have a valid counterclaim. For instance if the tenant claims that the landlord violated the warranty of habitability by failing to repair some conditions that the tenant has documented.
Finally, a landlord can ask for attorneys’ fees after obtaining a Judgment for possession or money. The landlord must comply with the Attorney’s Fees Clause of the lease. For example, if the lease states that the landlord gets attorneys’ fees if they obtain a Judgment against the tenant, then the landlord is entitled to attorneys’ fees. However, the landlord must provide proof to the court of the attorneys’ fees incurred and, if requested by the tenant, a breakdown of hours and the amount charged for each. A tenant can request a hearing on the attorneys’ fees and will have the opportunity to object to the amount requested. Occasionally, a tenant will agree to pay a reduced fee as part of a settlement.
Requirements and Timelines
The legal requirements and timeframe for submitting an Order to Show Cause will vary from court to court, but the concept is the same. Certain rules must be followed in order to have the court hear your motion, and failure to do so can be detrimental to your case. In Kings County, you need a Certificate of Merit and a Rule 130 Notice of Limited Appearance, where non-attorneys can sign; all other boroughs require a notice of limited appearance with a letter from a supervising attorney that you are being supervised, to be signed by the non-attorney. This procedure must be followed in order for a non-attorney who works under the supervision of an attorney to file a motion.
You will need to follow the timeframes set by the court when filing your motion. The general rule is that it must be served upon the opposing party by 12:30 p.m. the business day prior to the hearing. Exceptions to this rule include if the court issues a directive calling for something different, or if you serve them with a cross motion, at which point they will have until 12:30 the following day to respond. If the opposing party has not been served with notice of the motion before 12:30 the day prior, you cannot file the motion until the following week, as motions in housing court are heard on Mondays and Thursdays.
Attending the Hearing
If there is an Order to Show Cause (OSC), a court appearance will be calendared, usually within a few days. An OSC is considered an emergency and housing court judges will squeeze you into their busy dockets in order to resolve the emergency. Be prepared to wait a few hours. You know that saying that "good things come to those who wait"? Well, you can expect the opposite in housing court. But if you wait, you’re more likely to get what you want.
The landlord and tenant each appear, with counsel, at a motion for an OSC. If you don’t have a lawyer, consider getting one before you attend the hearing. A landlord or tenant without an attorney will be lost. (If there is a financial hardship, legal services may be able to assist you, and the court may defer filing or even waive the filing fee).
After the attorney hand delivers confirmed copies of the papers to the other party and the Judge’s Part Clerk, the parties will be called. Each party must approach the bench. In some cases, the judge will appoint an attorney for the day to represent the tenant. Most of the time, however, the tenant appears pro se (without an attorney) .
The landlord’s attorney will argue from the order to show cause why the eviction should not occur, presenting facts from the sworn affidavit, information regarding the case including the tenant history, rent, if the premises are illegal residential, etc.
The judge will also listen to the tenant’s attorney to understand why the tenant believes the matter should not go forward. The tenant’s attorney will argue why the tenant should not be evicted, and in most cases, present an additional affidavit from the tenant that should help the tenant’s case. In cases where there is an agreement between the landlord and tenant, the attorney will review the stipulation with the judge. Sometimes it is helpful to have the tenant or anyone else who can assist with the case a part of the discussion (when appropriate). The judge will want to hear the tenant’s position, but the hearing is not a forum to bring in other people such as parents or friends.
In most cases, the judge will review the order to show cause and allow the parties to stay or vacate the warrant of eviction when applicable. Less commonly, the court may stay the warrant for a number of months or order the tenant pay rent.
Possible Outcomes and Next Steps
Courts may fully grant, partially grant, or deny an Order to Show Cause. In either of the first two situations, the court will often condition its determination upon further compliance – either by requiring a party to do something, such as pay rent, or putting them on notice that future noncompliance may lead to future penalties, including the possibility of being held in contempt of court. As such, even if a court grants relief upon the showing made in the Order to Show Cause, it will often require a party to do something beyond simply writing a check.
For instance, if a tenant is behind on rent or utility fees, the court may require that the tenant do one of two things:
Alternatively, if a tenant has not been keeping up with rent payments, a court may warn the tenant that any failure to pay rent within the time specified by the court in the Order to Show Cause may lead to the court entering a judgment allowing the landlord to regain possession of the apartment.
If an Order to Show Cause is denied, the next step for the movant may be to file a new application or notice of motion, or, in certain circumstances, to amend the original application or motion. Once an Order to Show Cause has been denied, parties may not resubmit the original application or motion, but must start over. In such cases, the court may dismiss the existing application or motion, and grant leave to file a motion complying with the appropriate procedures or, if desired, pursue an entirely new application or motion. Or the court may just deny the existing application and grant leave to resubmit.
Legal Help and Resources
Given the complexity of the law and the consequences that you may face, it is strongly recommended that you obtain legal assistance when responding to an OSC in housing court. Further, as soon as you obtain knowledge of an OSC against you, do not disregard it.
Housing Court Help Centers are available for both landlords and tenants to assist with navigating a housing court case, including with OSCs. These centers provide free, part time , walk-in help. Hours and locations for the Housing Court Help Centers are listed here. Moreover, the City Bar Association, New York Legal Aid Society and New York Legal Assistance Group (NYLAG) offer free legal consultations through their various clinics. Please keep in mind, these clinics fill up quickly and, typically, have limited hours. If necessary, they will refer you to another organization or organization that specializes in your needs.