New York State Bill A5631
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Text of New York State Bill A05631
S T A T E O F N E W Y O R K
________________________________________________________________________
5631
1997-1998 Regular Sessions
I N A S S E M B L Y
March 4, 1997
___________
Introduced by M. of A. REYNOLDS, BALBONI, ANDERSON, WIRTH, GUERIN, ALFA-
NO -- Multi-Sponsored by -- M. of A. DORAN, NESBITT, STRANIERE -- read
once and referred to the Committee on Judiciary
AN ACT to amend the real property actions and proceedings law, in
relation to landlord and tenant proceedings
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 731 of the real property actions and proceedings
2 law is amended by adding a new subdivision 3 to read as follows:
3 3. IN THE CITY OF NEW YORK, THE NOTICE OF PETITION SHALL ADVISE THE
4 RESPONDENT OF THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION SEVEN
5 HUNDRED FORTY-FIVE OF THIS ARTICLE AND SHALL STATE THAT UPON THE SECOND
6 ADJOURNMENT AT THE REQUEST OF THE TENANT AND/OR THE COURT, OR THE
7 COURT`S RESERVING DECISION UPON A MOTION THE EFFECT OF WHICH IS A DELAY
8 OF THE COMMENCEMENT OF TRIAL FOR MORE THAN TEN DAYS, THE COURT WILL
9 DIRECT THAT THAT TENANT POST ALL SUMS OF PAST RENT AND USE AND OCCUPANCY
10 PRIOR TO THE ADJOURNED DATE AND FUTURE RENT AND USE AND OCCUPANCY AS IT
11 BECOMES DUE.
12 S 2. Subdivision 2 of section 745 of the real property actions and
13 proceedings law, as added by chapter 403 of the laws of 1983, is amended
14 to read as follows:
15 2. In the city of New York:
16 (a) In a summary proceeding upon the second {request by the tenant for
17 an adjournment} OF TWO ADJOURNMENTS AT THE REQUEST OF THE RESPONDENT
18 AND/OR THE COURT, OR THE COURT`S RESERVING DECISION UPON A MOTION THE
19 EFFECT OF WHICH IS A DELAY OF THE COMMENCEMENT OF TRIAL OF MORE THAN TEN
20 DAYS, the court shall direct that the tenant post all sums OF PAST RENT
21 AND USE AND OCCUPANCY DUE, SAID POSTING TO BE REQUIRED PRIOR TO THE
22 ADJOURNED DATE, AND ALL SUMS as they become due for future rent and use
23 and occupancy{, which may be established without the use of expert
24 testimony, unless waived by the court for good cause shown}, UNLESS THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD03042-01-7
A. 5631 2
1 RESPONDENT CAN ESTABLISH BY SWORN AFFIDAVIT OR AT AN IMMEDIATE HEARING,
2 TO THE SATISFACTION OF THE COURT THAT RESPONDENT HAS PROPERLY INTERPOSED
3 ON THE FOLLOWING DEFENSES:
4 (1) THE PETITIONER IS NOT A PROPER PARTY TO THE PROCEEDING PURSUANT TO
5 SECTION SEVEN HUNDRED TWENTY-ONE OF THIS ARTICLE; OR
6 (2) (I) ACTUAL EVICTION, OR (II) ACTUAL PARTIAL EVICTION, OR (III)
7 CONSTRUCTIVE EVICTION; AND RESPONDENT HAS QUIT THE PREMISES.
8 Two adjournments shall {not} include an adjournment requested by a
9 tenant unrepresented by counsel for the purpose of securing counsel made
10 on the initial return date of the proceeding. Such PAST DUE AND future
11 rent and use and occupancy sums shall be deposited with the clerk of the
12 court or paid to such other person or entity, including the petitioner,
13 as the court shall direct or shall be expended for such emergency
14 repairs as the court shall approve.
15 (b) {In any adjournment of a summary proceeding, other than on consent
16 or at the request of the petitioner, the court shall at the petitioner`s
17 request state on the record why for good cause shown it is not directing
18 the tenant to pay or post all sums demanded pursuant to a lease or
19 rental agreement in the proceeding as rent and use and occupancy} (I)
20 IF, ON OR BEFORE THE DATE ORDERED BY THE COURT, RESPONDENT SHALL FAIL TO
21 COMPLY WITH THE COURT`S DIRECTIONS WITH RESPECT TO DIRECT PAYMENT TO THE
22 PETITIONER OR MAKING A DEPOSIT WITH THE CLERK OF THE COURT OF THE FULL
23 AMOUNT OF THE RENT AND USE AND OCCUPANCY THEN DUE, THE COURT SHALL
24 DISMISS WITHOUT PREJUDICE THE DEFENSES AND COUNTERCLAIMS INTERPOSED BY
25 THE RESPONDENT AND GRANT JUDGMENT FOR PETITIONER UNLESS RESPONDENT HAS
26 INTERPOSED THE DEFENSE OF PAYMENT AND SHOWS, BY A PREPONDERANCE OF THE
27 EVIDENCE, THAT THE AMOUNT REQUIRED TO BE DEPOSITED HAS PREVIOUSLY BEEN
28 PAID TO THE PETITIONER.
29 (II) IN THE EVENT THAT THE RESPONDENT MAKES A DEPOSIT REQUIRED BY
30 SUBPARAGRAPH (I) OF THIS PARAGRAPH BUT FAILS TO DEPOSIT OR PAY, AS THE
31 CASE MAY BE, UPON THE DUE DATE, ALL FURTHER RENT AND USE AND OCCUPANCY
32 WHICH MAY BECOME DUE, EITHER WITH THE COURT OR TO THE PETITIONER, UP TO
33 THE TIME OF THE ENTRY OF JUDGMENT, THE COURT SHALL ORDER AN IMMEDIATE
34 TRIAL OF THE ISSUES RAISED IN THE PETITION.
35 (III) THE COURT SHALL BE WITHOUT JURISDICTION TO EXTEND ANY TIME
36 PROVIDED FOR SUCH DEPOSIT UNDER THIS SUBDIVISION.
37 (IV) AMOUNTS REQUIRED TO BE DEPOSITED FOR USE AND OCCUPANCY MAY BE
38 ESTABLISHED WITHOUT THE USE OF EXPERT TESTIMONY.
39 (V) UPON THE ENTRY OF THE FINAL JUDGMENT IN THE PROCEEDING, THE CLERK
40 SHALL, WITHOUT FURTHER ORDER OF THE COURT, FORTHWITH PAY OVER TO THE
41 PETITIONER THE ENTIRE AMOUNT OF THE DEPOSIT, UNLESS THE JUDGMENT EXPLIC-
42 ITLY PROVIDES TO THE CONTRARY.
43 (VI) THE PROVISIONS OF THIS PARAGRAPH REQUIRING THE DEPOSIT OF PAST
44 DUE RENT AND FUTURE RENT AND USE AND OCCUPANCY AS IT BECOMES DUE SHALL
45 NOT BE WAIVED BY THE COURT, NOTWITHSTANDING ANY AFFIRMATIVE DEFENSE OR
46 COUNTERCLAIM INTERPOSED BY THE RESPONDENT INCLUDING, BUT NOT LIMITED TO,
47 ANY ALLEGATION OF ANY BREACH BY THE PETITIONER OF THE WARRANTY OF HABIT-
48 ABILITY WITH RESPECT TO THE PREMISES WHICH ARE THE SUBJECT OF THE SUMMA-
49 RY PROCEEDING OR ANY OTHER DEFENSE, AFFIRMATIVE DEFENSE OR COUNTERCLAIM
50 UNLESS IT IS ONE OF THE ITEMS SPECIFICALLY ENUMERATED IN SUBPARAGRAPH
51 ONE OR TWO OF PARAGRAPH (A) OF THIS SUBDIVISION, AND ALL OF THE REQUIRE-
52 MENTS OF THE SUBDIVISION RELIED UPON ARE SATISFIED.
53 (c) {The provisions of this subdivision shall not apply if the housing
54 accommodation in question or the public areas pertaining thereto are
55 charged with immediately hazardous violations of record as defined by
56 the New York city housing maintenance code.
A. 5631 3
1 (d)} The court may dismiss any summary proceeding without prejudice
2 and with costs to the respondent by reason of excessive adjournments
3 requested by the petitioner.
4 {(e)} (D) The provisions of this subdivision shall not be construed as
5 to deprive a tenant of a trial of any summary proceeding, PROVIDED THE
6 TENANT APPEARS IN THE PROCEEDING AND COMPLIES WITH ANY COURT ORDER
7 DIRECTING THE DEPOSIT OR PAYMENT OF RENT OR USE AND OCCUPANCY.
8 S 3. The real property actions and proceedings law is amended by
9 adding a new section 747-a to read as follows:
10 S 747-A. SUMMARY OF NONPAYMENT PROCEEDINGS. IN ANY SUMMARY NONPAYMENT
11 PROCEEDING IN WHICH THE RESPONDENT HAS APPEARED AND THE PETITIONER HAS
12 OBTAINED A MONEY JUDGMENT OR POSSESSORY JUDGMENT PURSUANT TO SECTION
13 SEVEN HUNDRED FORTY-SEVEN OF THIS ARTICLE THE COURT SHALL NOT SIGN ANY
14 ORDERS TO SHOW CAUSE ON BEHALF OF THE RESPONDENT WHICH CONTAIN A STAY OF
15 THE ISSUANCE OR EXECUTION OF ANY WARRANT OF EVICTION UNLESS THE RESPOND-
16 ENT SHALL HAVE SATISFIED SUCH JUDGMENT AMOUNT IN FULL BY PAYMENT TO THE
17 PETITIONER OR SHALL HAVE DEPOSITED THE FULL AMOUNT OF SUCH JUDGMENT WITH
18 THE CLERK OF THE COURT. IN THE EVENT OF SUCH DEPOSIT, THE COURT SHALL
19 UPON DEMAND PAY THE AMOUNT DEPOSITED TO THE PETITIONER OR HIS DULY
20 AUTHORIZED AGENT. IN THE EVENT RESPONDENT ALLEGES PAYMENT TO PETITIONER,
21 THE COURT SHALL BE WITHOUT AUTHORITY TO SIGN ANY ORDERS TO SHOW CAUSE OR
22 ISSUE ANY STAYS UNLESS RESPONDENT SHALL DISPLAY TO THE COURT SATISFAC-
23 TORY PROOF OF SUCH ALLEGED PAYMENT.
24 S 4. This act shall take effect on the thirtieth day after it shall
25 have become a law and shall apply to proceedings commenced on or after
26 such effective date.