My tenants moved in feb 1, 08 with a 1 yr lease. Month of march rent was late (red flag). Nov 08 non renewal of lease served to tenants. Jan 09 comes tenant doesn't pay Jan rent and when contacted tenant states there are no damages and we are living out our security and will be out Feb 1, 09. Feb 1 comes and goes. Contacts tenant he states I need until fri the other apt isn't ready. Feb 6 comes and goes once again. Tried numerous times to contact tenant and he will not return phonecalls or anything. Finally when he did finally pick up he says he needs a day. I immediately say no I want you out you are not paying rent and living beyond your lease. He tells me you and hangs up. What do I do from here. We are in westchester county.:mad:

Its probably too late, but what you should have done is file a pay or quit notice, as soon as missed the Feb rent. Its not his choice to use the Security for paying past due rent, its yours.

If he truly is close to moving, then you he'll probably beat the eviction process. But you go through it anyway. You need to serve him with a Pay or quit notice immediately. You need to check NY laws for the allowed time frame. Normally its between 3-10 days.

If he's not out with that time frame, then start eviction proceedings. Once he's finally out, then you file suit for unpaid rental. After checking for damages and cataloging those.

Actually in Jan when they did not pay rent ( you can not live out the deposit) Now if they leave the home trashed you have no deposit money either, or they owe back rent.

I would start NOW by giving the written eviction notice so if they are not out by the day they said, you start legal eviction,
And that is only assuming they have paid you some rent, I would give then eviction and start the legal process to be sure they are out,

Then I would check it out for damage and then sue them for last months rent and this moths rent.