In a NY eviction, does the sheriff have to physically remove the tenant's furniture and possessions?

Subject

Sheriff's duty to remove personal property in RPAPL § 749(1) eviction

Plain-English summary

Chenango County asked the AG whether, in executing an eviction warrant under RPAPL § 749(1), the sheriff must physically remove the evicted person's personal property (furniture, clothing, household goods), or whether the sheriff could simply turn the premises over to the landlord with the tenant's belongings still inside.

The AG worked through over a century of case law. RPAPL § 749(1) authorizes a court issuing a final judgment for the petitioner-landlord in a summary proceeding to issue a warrant directing the sheriff (or marshal or constable, depending on the locality) to "remove all persons" and put the petitioner in full possession of the property. The predecessor statute, Code of Civil Procedure § 2251 (1876), used essentially the same language.

The leading case, Ide v Finn, 196 App Div 304 (1st Dept 1921), construed § 2251 to require the executing officer to remove not only the tenant but also the tenant's personal property. The Court added an important practical exception: the landlord could relieve the marshal of that duty and accept possession with the tenant's property still on the premises. Witbeck v Van Rensselaer, 64 NY 27 (1876), supports the same idea: the landlord controls whether to insist on full physical removal or take "legal possession" with belongings in place.

The New York City Civil Court Act and the New York City Marshals Handbook (approved by the First and Second Departments under 22 NYCRR § 635.9(4)(b)) codify the two options. An "eviction" is the full-removal version: the marshal removes the tenant and the tenant's property. A "legal possession" is the lock-change version: the marshal changes the locks and obtains the landlord's signature acknowledging possession, leaving the property in place.

The AG concluded the same framework applies outside New York City. A sheriff executing an RPAPL § 749(1) warrant must remove the personal property, unless the petitioner relieves the sheriff of that duty. The landlord may choose either route. Either way, the cost of removal (when removal is undertaken) is the landlord's responsibility to the sheriff (1983 Op Atty Gen [Inf] 174).

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the difference between an "eviction" and a "legal possession"?

In New York City Marshals Handbook terminology (which the AG opinion adopts as a model): an eviction is the full physical removal of the tenant and the tenant's belongings, with the landlord paying the removal costs. A legal possession is a lock-change procedure where the marshal places the landlord in possession but the tenant's belongings remain inside (typically to be reclaimed or disposed of later under the landlord's care).

Why does the landlord get to choose?

Because the duty to remove property is for the petitioner-landlord's benefit (to deliver fully cleared premises). The landlord can waive that benefit and accept the property still inside. Ide v Finn made the choice explicit, and the Marshals Handbook formalized it.

What about the tenant's right to recover the property?

The opinion does not address the tenant's post-eviction property rights directly. New York has a separate body of law on warehouse storage, lien enforcement, and landlord obligations to safeguard tenant property left behind after legal possession. Tenants should not rely on this opinion alone for those questions.

Does this work the same way for marshals as for sheriffs?

For most purposes, yes. New York City Civil Court Act § 1609(1) provides that all provisions of law relating to sheriff's powers and duties apply to City marshals. The legal possession option in the Marshals Handbook applies to City marshals; the AG's reading is that the same option is available to sheriffs and constables in summary proceedings statewide.

Who pays for the removal of tenant property?

The landlord-petitioner. The AG cites 1983 Op Atty Gen (Inf) 174 for the principle that the petitioner is liable to the sheriff or marshal for the cost of removing the tenant's personal property. That is why landlords often choose legal possession instead of full eviction: it cuts the cost.

Statutory and procedural framework

RPAPL Article 7 governs summary proceedings to recover possession of real property (the main eviction vehicle for landlord-tenant disputes). RPAPL § 711 lists the grounds (holdover, non-payment). RPAPL § 749(1) authorizes the issuance of the warrant of eviction and addresses execution.

Code of Civil Procedure § 2251 (1876) is the statutory ancestor; its language closely parallels § 749(1) and the case law interpreting it (especially Ide v Finn) supplies the modern reading.

New York City Civil Court Act §§ 1609 and 1612 apply sheriff's powers to marshals and delegate handbook-making authority to the Department of Investigation under the Appellate Divisions' supervision. 22 NYCRR § 635.9(4)(b) is the regulatory pin for the Marshals Handbook.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-25_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 95-25
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW Article 7, §§ 701, 711, 749(1); CIVIL
PRACTICE CODE (1920); CODE OF CIVIL PROCEDURE (1876) § 2251; NEW YORK CITY CIVIL
COURT ACT §§ 1609, 1612; 22 NYCRR § 635.9(4)(b).
A sheriff executing a warrant issued in a summary proceeding pursuant to section 749(1) of the Real
Property Actions and Proceedings Law must effect the removal of the personal property of the person to
be evicted or dispossessed unless the successful petitioner relieves the sheriff of the duty to do so.
May 1, 1995
Richard W. Breslin, Esq. Informal Opinion
County Attorney No. 95-25
County of Chenango
County Office Building
Norwich, NY 13815
Dear Mr. Breslin:
You inquire whether in executing a warrant issued pursuant to the provisions of section 749(1) of the
Real Property Actions and Proceedings Law (hereafter "RPAPL"), a sheriff must effect the removal of
the personal property of the person to be evicted or dispossessed. We conclude that a sheriff must effect
the removal of the personal property of the person to be evicted or dispossessed unless the successful
petitioner relieves the sheriff of the duty to do so.
Real Property Actions and Proceedings Law Article 7 provides for a special proceeding to recover
possession of real property, and is often used by a landlord who seeks to evict a holdover tenant or a
tenant who has defaulted in the payment of rent. RPAPL § 711. The judgment of a successful petitioner
is carried out by the execution of a warrant provided in RPAPL § 749(1). RPAPL § 749(1) provides as
follows:

1. Upon rendering a final judgment for petitioner, the court shall issue a warrant directed to
   the sheriff of the county or to any constable or marshal of the city in which the property, or
   a portion thereof, is situated, or, if it is not situated in a city, to any constable of any town in
   the county, describing the property, and commanding the officer to remove all persons, and,
   except where the case is within section 715, to put the petitioner into full possession.
   Real Property Actions and Proceedings Law Article 7 has long-standing statutory precedents. Both the
   Civil Practice Code of 1920 and the Code of Civil Procedure of 1876 (hereafter "1876 CCP") authorized
   summary proceedings to recover possession of real property. See, generally, RPAPL § 701, Historical
   Note. A judgment in a summary proceeding under the 1876 CCP was enforced through execution of a
   warrant ". . . to remove all persons therefrom . . . and to put the petitioner into the full possession
   thereof". 1876 CCP § 2251.
   In Ide v Finn, 196 App Div 304 (1st Dept 1921), the Court advised that with respect to a warrant issued
   in a summary proceeding pursuant to 1876 CCP § 2251 (the provisions of which are nearly identical to
   the provisions of RPAPL § 749[1]), a marshal is authorized and required to effect the removal of the
   personal property of a tenant. Ide, at pp 310-312. The Court indicated, nonetheless, that a landlord might
   relieve a marshal from the duty of removing the tenant's personal property and accept possession with

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_25.html

4/21/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

tenant still on the premises. Ide, at p 312; Witbeck v Van Rensselaer, et al., 64 NY 27, 32 (1876); Lee
Chuck v Quon Wo Chong Co., 22 P22 (Sp Ct Cal 1889).
In Regan v Tally Ho Trucking, 103 Misc 2d 269, NY City Civ Ct Bronx Co 1980), the Court upheld as
valid a marshal's execution of a warrant issued in a summary proceeding by changing the locks of
tenant's premises and without removal of tenant's personal property, in accordance with provisions of the
New York City Marshals Handbook of Regulations. Regan, at p 274. The powers of marshals in the City
of New York are governed by Article 16 of the New York City Civil Court Act (hereafter "NYCCA").
NYCCA § 1609(1) provides that all provisions of law relating to the powers and duties of sheriffs shall
apply to City marshals. See, Torie v City of New York, 96 Misc 2d 955 (NY City Civ Ct Bronx Co
1978). NYCCA § 1609(2) requires the Appellate Divisions to promulgate rules and regulations
concerning performance of the official duties of the City marshals, and section 1612 allows the
Appellate Divisions to delegate this authority. Under Joint Administrative Order No. 453, the Appellate
Divisions, First and Second Departments, delegated to the New York City Department of Investigation
authority to promulgate a handbook of regulations for City marshals, subject to the approval of the
Appellate Divisions. Marcado v Weinheim, 108 Misc 2d 81 (NY City Civ Ct Bronx Co 1981); 22
NYCRR § 635.9(4)(b). This handbook, the "New York City Marshals Handbook of Regulations", as
most recently issued in July 1986 and approved by the Appellate Divisions (hereafter "Marshals
Handbook"), sets forth duties of City marshals with respect to summary proceedings under RPAPL
Article 7. In section 6-3 thereof, the Marshals Handbook distinguishes between an eviction and a legal
possession. With respect to execution of a warrant to evict, the Marshals Handbook requires the City
marshal to remove the tenant and his personal property. To deliver legal possession, the City marshal
does not remove personal property but rather changes the locks to the premises and obtains the signature
of the landlord on the back of the warrant,
acknowledging possession. Consistent with the concept expressed in Ide, that a landlord may relieve a
City marshal executing a warrant from the duty to remove a tenant's personal property, the Marshals
Handbook provides that City marshals are required to perform either an eviction or a legal possession, at
the election of the landlord. Marshals Handbook, § 6-3 at pp 13, 16, 17.
In light of Ide, and the imprimatur of the Appellate Divisions of the First and Second Departments
through approval of the Marshals Handbook, we conclude that a sheriff executing a warrant pursuant to
Real Property Actions and Proceedings Law § 749(1) must effect the removal of the personal property
of the person to be evicted or dispossessed unless the successful petitioner relieves the sheriff of the duty
to do so. We note that petitioner is liable to the sheriff or marshall for the cost of removal of the tenant's
personal property. 1983 Op Atty Gen (Inf) 174.
The Attorney General renders formal opinions only to officers and departments of State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
MICHAEL D. MORGAN
Assistant Attorney General

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_25.html

4/21/2006