The lease between me and my tenant expired yesterday and the tenant doesn't want to renew/sign the new lease for another yearly term. The tenant didn't tell me that she was going to move out and not renew her lease til yesterday. There was no 30 days notice or anything till I asked. However, the tenants plans to continue to live in the apartment till she finds a new apartment, which she anticipates to be the beginning of next month or the middle of next month. For this month's rent, the tenant wants to use her security deposit as a form of her payment for rent. I told her that I cannot accept that. It was stated in the expired lease that the security deposit cannot be used as rent. I know that the lease expired but I want her to pay this month's rent and still have her security deposit just in case there are damages found after she vacates the apartment. She gave me the excuse that finding a new apartment is expensive and she can't afford to pay this month's rent. I told her that I can give her an extension but she would still have to pay this month's rent. If she doesn't pay this month's rent, is there any way that I can file a small claim against her in a housing court? We're located in NY.
New York has a Landlord’s Guide to Holdover Summary Proceedings. It’s available here https://www.nycourts.gov/courts/6jd/townvillage/HoldSummProc.pdf. That’s what you want, a Holdover Summary Proceeding. Not a small claims case. That document contains a lot of details about how you need to proceed; too many to list here. A holdover is someone who has stayed past the rental term. It is not the same thing as suing a tenant under a lease for payment of rent. In fact you need to be careful, if you accept rent the court may find that you’ve accepted to renew the lease and now the holdover avenue won’t work for you.
You need to carefully read that guide. You’ll see that you need to give the holdover tenant Notice to Terminate. You can’t just go rushing off to court. The Guide contains a sample Notice to Terminate.
Here is a sample Holdover Petition. It can also serve as a summary of the prerequisites and also make sure that you and your property qualify for the process. http://www2.law.columbia.edu/donnelly/hlas/Legal%20Aid/PETITION%20-%20HOLDOVER.doc